also some other writs which are said to be in the nature of a writ of right, be cause their process and proceedings do mostly (though not entirely) agree with the writ of right: but in some of them the fee-simple is not demanded; and in others not land, but some incorporeal hereditament. Some of these 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 divisions. Nor is the mere writ of right alone, or always, applicable to every case of a claim of lands in fee-simple for if the lord's tenant in fee-simple dies without heir, whereby an escheat accrues, the lord shall have a writ of escheat,(r) which is in the nature of a writ of right.(s) And if one of two or more coparceners deforces the other, by usurping the sole possession, the party aggrieved shall have a writ of right, de rationabili parte,(t) which may be grounded on the *seisin of the an*195] cestor at any time during his life; whereas in a nuper obiit (which is a possessory remedy)(u) he must be seised at the time of his death. But, waiving these and other minute distinctions, let us now return to the general writ of right.

This writ ought to be first brought in the court-baron (w) 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, remisit curiam suam, it may be brought in the king's courts by writ of præcipe originally;(x) and then it is a writ of right close; (y) being directed to the sheriff and not the lord.(z) Also, when one of the king's immediate tenants in capite is deforced, his writ of right is called a writ of præcipe in capite, (the improper use of which, as well as of the former præcipe quia dominus remisit curiam, so as to oust the lord of his jurisdiction, is restrained by magna carta,)(a) and, being directed to the sheriff and originally returnable in the king's courts, is also a writ of right close.(b) There is likewise a little writ of right close, secundum consuetudinem manerii, which lies for the king's tenants in antient demesne, (c) and others of a similar nature, (d) to try the right of their lands and tenements in the court of the lord exclusively.(e) But the writ of right patent itself may also at any time be removed into the county-court, by writ of tolt,(f) and from thence into the king's courts by writ of pone(g) or recordari facias, at the suggestion of either party that there is a delay or defect of justice.(h) In the progress of this action,(i) the demandant must allege some seisin of the lands and tenements in himself,18 or else in some person under whom *196] he claims, and then derive the right *from the person so seised to him

18 A writ of right cannot be maintained without showing an actual seisin by taking the esplees, either in the demandant himself or the ancestor from whom he claims. 1 H. B. 1. And the demandant must allege in his count that his ancestor was seised of right, as well as that he was seised in his demesne as of fee. 2 B. & P. 570. 5 East, 272. And if the count state that the lands descended to four women, as nieces and co-heirs of J. S., it must also show how they were nieces. 3 B. & P. 453. 1 N. R. 66. Proof of possession of land and pernancy of the rents is prima facie evidence of a seisin in fee of the pernor. But proof of forty years' subsequent possession by a daughter, while a son and heir lived near and knew the fact, is much stronger evidence that the first possessor had only a particular estate. 5 Taunt. 326. 1 Marsh 68. The court requires a strict observance of the prescribed forms in this proceeding, and will not assist the demandant who applies to rectify omissions or irregularities. 2 N. R. 429. 1 Marsh, 602. 1 Taunt. 415. 1 Bing. 208. The court will not permit the mise joined in a writ of right to be tried by a jury instead of the grand assize, though both parties desire it. 1 B. & P. 192. As to summoning and swearing the four knights, see 3 Moore, 249. 1 Taunt. & Brod. 17. They may be summoned from the grand jury when present at the assizes. Ib. As to the tender of the demymark, and what the demand ant must prove previous to the tenant being put upon proof of his title, see Holt, C.

self; to which the tenant may answer by denying the den....dant's right, and averring that he has more right to hold the lands than the demandant has to demand them and this right of the tenant being shown, it then puts the demandant upon the proof of his title: in which, if he fails, or if the tenant hath shown a better, the demandant and his heirs are personally barred of their claim; but if he can make it appear that his right is superior to the tenant's, he shall recover the land against the tenant and his heirs forever. But even this writ of right, however superior to any other, cannot be sued out at any distance of time. For by the antient law no seisin could be alleged by the demandant, but from the time of Henry the First;(k) by the statute of Merton, 20 Hen. III. c. 8, from the time of Henry the Second; by the statute of Westm. 1, 3 Edward I. c. 39, from the time of Richard the First; and now, by statute 32 Henry VIII. c. 2, seisin in a writ of right shall be within sixty years. So that the possession of lands in fee-simple uninterruptedly, for threescore years, is at present a sufficient title against all the world; and cannot be impeached by any dormant claim whatsoever.19

I have now gone through the several species of injury by ouster and dispossession of the freehold, with the remedies applicable to each. In considering which I have been unavoidably led to touch upon such obsolete and abstruse learning, as it lies intermixed with, and alone can explain the reason uf, those parts of the law which are now more generally in use. For, without contemplating the whole fabric together, it is impossible to form any clear idea of the meaning and connection of those disjointed parts which still form a considerable branch of the modern law; such as the doctrine of entries and remitter, the levying of fines, and the suffering of common recoveries. Neither indeed is any considerable part of that, which I have selected in this chapter from among the venerable monuments of our ancestors, so *absolutely antiquated as to [*197 be out of force, though the whole is certainly out of use: there being but a very few instances for more than a century past of prosecuting any reai action for land by writ of entry, assize, formedon, writ of right, or otherwise. The forms are indeed preserved in the practice of common recoveries; but they are forms and nothing else; for which the very clerks that pass them are seldom capable to assign the reason. But the title of lands is now usually tried in actions of ejectment or trespass; of which in the following chapters.20

(*) Glanv. l. 2, c. 3. Co. Litt. 114.

N. P. 657; and see the precedents and notes, 3 Chitty on Pl. 4th ed. 1355 to 1390.— CHITTY.

19 This is far from being universally true; for an uninterrupted possession for sixty years will not create a title where the claimant or demandant had no right to enter within that time; as where an estate in tail, for life, or for years continues above sixty years, still the reversioner may enter and recover the estate; the possession must be adverse, and lord Coke says, "It has been resolved that although a man has been out of possession of land for sixty years, yet if his entry is not tolled he may enter and bring any action of his own possession; and if his entry be congeable, and he enter, he may have an action of his own possession." 4 Co. 11, b.-CHRISTIAN.

20 All the real actions which have been mentioned in this chapter, and all others whatsoever, with the exceptions of the writ of right of dower, the writ of dower unde ninil habet, and writ of quare impedit, have been abolished; and the title to lands is now almays tried, as it was usually in the time of Blackstone, by an action of ejectment or of trespass. -STEWART.

135

CHAPTER XI.

OF DISPOSSESSION, OR OUSTER, OF CHATTELS REAL.

*198] *HAVING in the preceding chapter considered with some attention the several species of injury by dispossession or ouster of the freehold, together with the regular and well-connected scheme of remedies by actions real, which are given to the subject by the common law, either to recover the pos session only, or else to recover at once the possession, and also to establish the right of property; the method which I there marked out leads me next to consider injuries by ouster of chattels real; that is, by amoving the possession of the tenant from an estate by statute-merchant, statute-staple, recognizance in the nature of it, or elegit; or from an estate for years.

I. Ouster, or amotion of possession, from estates held by statute, recognizance, or elegit, is only liable to happen by a species of disseisin, or turning out of the legal proprietor, before his estate is determined by raising the sum for which it is given him in pledge. And for such ouster, though the estate be merely a chattel interest, the owner shall have the same remedy as for an injury to a freehold; viz., by assize of novel disseisin.(a) But this depends upon the several statutes which create these respective interests,(b) and which expressly provide *199] and allow this remedy in case of dispossession. Upon which account it is that Sir Edward Coke observes, (c) that these tenants are said to hold their estates ut liberum tenementum, until their debts are paid: because by the statutes they shall have an assize, as tenants of the freehold shall have; and in that respect they have the similitude of a freehold.(d)1

II. As for ouster, or amotion of possession, from an estate for years; this happens only by a like kind of disseisin, ejection, or turning out, of the tenant from the occupation of the land during the continuance of his term. For this injury the law has provided him with two remedies, according to the circumstances and situation of the wrong-doer: the writ of ejectione firma; which lies against any one, the lessor, reversioner, remainder-man, or any stranger, who is himself the wrong-doer and has committed the injury complained of; and the writ of quare ejecit infra terminum, which lies not against the wrong-doer or ejector himself, but his feoffee or other person claiming under him. These are mixed actions, somewhat between real and personal: for therein are two things recovered, as well restitution of the term of years, as damages for the ouster or wrong.

1. A writ then of ejectione firma, or action of trespass in ejectment,' licth where

(a) F. N. B. 178.

(b) Stat. Westm. 2. 13 Edw. I. c. 18. Stat. de mercatoribus,

27 Edw. III. c. 9. Stat. 23 Hen. VIII. c. 6, 89.

(e) 1 Inst. 43.
(d) See book ii. ch. 10.

The assize of novel disseisin, as we have seen in the notes to the last chapter, is now abolished. These tenants therefore have the same remedy for the ouster of their possession as the tenant of the freehold,- —an ejectment.-STEWART.

2

See, in general, Adams on Ejectment. Tidd Prac. 8 ed. 518, &c. Runington on Ejectment, by Ballatine. Com. Dig. Ejectment. 1 Chitty on Pl. 4 ed. 172.

In general, ejectment will lie to recover possession of any thing whereon an entry can be made, and whereof the sheriff can deliver possession. But an ejectment cannot be maintained for a close, (11 Rep. 55. Godb. 53,) a manor, without describing the quantity of land therein, (Latch. 61. Lutw. Rep. 301. Hetl. 146,) a messuage and tenement, (1 East. 441. Stra. 834;) but after verdict (even pending a rule to arrest the judgment on this ground) the court will give leave to enter the verdict according to the judge's notes for the messuage only, (8 East, 357;) nor a messuage or tenement, (3 Wils. 23,) nor a messuage situate in the parishes of A. and B., or one of them, (7 Mod. 457,) nor for things that lie merely in grant, not capable of being delivered in execution, as an advowson, common in gross, (Cro. Jac. 146,) a piscary. Ib. Cro. Car. 492. 8 Mod. 277. 1 Brownl. 142. Contra, per Ashurst, J., 1 T. R. 361. And where the owner of the fee by indenture granted to A. free liberty to dig for tin, and all other metals, throughout ertain lands there described, and the use of all water, water-courses, and to make

lands or tenements are let for a term of years; and afterwards the lessor, reversioner, remainder-man, or any stranger, doth eject or oust the lessee of his term.(e) In this case he shall have his writ of ejection to call the defendant to answer for entering on the lands so demised to the plaintiff for a term that is not yet expired, and ejecting him. (f) And by this writ the plaintiff shall recover back his term, or the remainder of it, with damages.

[*200

*Since the disuse of real actions, this mixed proceeding is become the common method of trying the title to lands or tenements. It may not therefore be improper to delineate, with some degree of minuteness, its history, the manner of its process, and the principles whereon it is grounded.

We have before seen,(g) that the writ of covenant, for breach of the contract contained in the lease for years, was antiently the only specific remedy for recovering against the lessor a term from which he had ejected his lessee, together with damages for the ouster. But if the lessee was ejected by a stranger, claiming under a title superior(h) to that of the lessor, or by a grantee of the reversion, (who might at any time by a common recovery have destroyed the term,)(i) though the lessee might still maintain an action of covenant against the lessor for non-performance of his contract or lease, yet he could not by any means recover the term itself. If the ouster was committed by a mere stranger, without any title to the land, the lessor might indeed by a real action recover possession of the freehold, but the lessee had no other remedy against the ejector but in damages, by a writ of ejectione firma, for the trespass committed in ejecting him from his farm.(k) But afterwards, when the courts of equity began to oblige the ejector to make a specific restitution of the land to the party immediately injured, the courts of law also adopted the same method of doing complete justice; and, in the prosecution of a writ of ejectment, introduced a species of remedy not warranted by the original writ nor prayed by the declaration, (which are calculated for damages merely, and are silent as to any re[*201 stitution,) viz., a judgment to recover the term, and a writ of possession thereupon.(1) This method seems to have been settled as early as the reign of Edward IV.;(m) though it hath been said (n) to have first begun under Henry VII., because it probably was then first applied to its present principal use, that of trying the title to the land.

The better to apprehend the contrivance whereby this end is effected, we must recollect that the remedy by ejectment is in its original an action brought by one who hath a lease for years, to repair the injury done him by dispossession. In order therefore to convert it into a method of trying titles to the freehold, it is first necessary that the claimant do take possession of the lands, to empower him to constitute a lessee for years, that may be capable of receiving this injury of dispossession. For it would be an offence, called in our law maintenance, (of which in the next book,) to convey a title to another, when the grantor is not in possession of the land; and indeed it was doubted at first, whether this occasional possession, taken merely for the purpose of conveying the title, excused the lessor from the legal guilt of maintenance.(0) When

(F. N. B. 220.

See Appendix, No. II. 2.1.

(2) See page 157.

(F. N. B. 145.

(See book ii. ch. 9.

(*) P. 6, Ric. II. Ejectione firmæ n'est que un action de trespass en som nature, et le plaintiff ne recovera son terme que est a venir, nient plus que en trespass home recovera damages pur tresspass nient fait, mes a feser; mes il conrint a suer par action de covenant al comen law a recoverer En terme: quod tota curia concessit. Et per Belknap, la comen ley est, bu home est ouste de son terme par estranger, il arera ejectime firmæ versus cesty queluy ouste; et sil soit

ouste par son lessor, briefe de covenant; et si par lessée ou grantee de reversim, briefe de covenant versus son lessor, et countera especial count, &c. Fitz. Abr. tit. eject. firm 2. See Bract. 1. 4, tr. 1, c. 36.

(1) See Append. No. II. 24, prope fin.

(m)7 Edw. IV. 6. Per Fairfax; si home port ejections firma, le plaintiff recovera sm terme qui est arere, si bien come in quare ejecit infra terminum; et, si nul sont arrere, donques tout in damages. Bro. Abr. tit. quare ejecit infra terminum, 6.

(") F. N. B. 220.

() 1 Ch. Rep. Append. 39.

adits, &c. reserving to himself liberty to drive any new adit and to carry any new water-course over the premises granted, habendum for twenty-one years, with right of re-entry for breach of covenants, this deed, it was held, did not amount to a lease, but contained a mere license to dig, &c., and the grantee could not maintain ejectment for nines lying within the limits of the set but not connected with the workings of the ⚫antee 2 B. & A. 724.-CHITTY.

therefore a person, who hath right of entry into lands, determines to acquiro that possession, which is wrongfully withheld by the present tenant, he makes (as by law he may) a formal entry on the premises; and being so in the possession of the soil, he there, upon the land, seals and delivers a lease for years to some third person or lessee: and, having thus given him entry, leaves him in possession of the premises. This lessee is to stay upon the land till the prior tenant, or he who had the previous possession, enters thereon afresh and ousts him; or till some other person (either by accident or by agreement beforehand) *202] comes upon the land, and turns him out or ejects him. For this injury the lessee is entitled to his action of ejectment against the tenant, or this casual ejector, whichever it was that ousted him, to recover back his term and damages. But where this action is brought against such a casual ejector as is before mentioned, and not against the very tenant in possession, the court will not suffer the tenant to lose his possession without any opportunity to defend it. Wherefore it is a standing rule, that no plaintiff shall proceed in ejectment to recover land against a casual ejector, without notice given to the tenant in possession, (if any there be,) and making him a defendant if he pleases. And, in order to maintain the action, the plaintiff must, in case of any defence, make out four points before the court; viz., title, lease, entry, and ouster. First, he must show a good title in his lessor, which brings the matter of right entirely before the court; then, that the lessor, being seised or possessed by virtue of such title, did make him the lease for the present term; thirdly, that he, the lessee or plaintiff, did enter or take possession in consequence of such lease; and then, lastly, that the defendant ousted or ejected him. Whereupon he shall have judgment to recover his term and damages; and shall, in consequence, have a writ of possession, which the sheriff is to execute by delivering him the undisturbed and peaceable possession of his term.

This is the regular method of bringing an action of ejectment, in which the title of the lessor comes collaterally and incidentally before the court, in order to show the injury done to the lessee by this ouster. This method must be still continued in due form and strictness, save only as to the notice to the tenant, whenever the possession is vacant, or there is no actual occupant of the premises; and also in some other cases. But, as much trouble and formality were found to attend the actual making of the lease, entry, and ouster, a new and more easy method of trying titles by writ of ejectment, where there is any actual tenant or occupier of the premises in dispute, was invented somewhat more than a century ago, by the lord chief justice Rolle,(p) who then sat in the court of upper bench; so called during the exile of king Charles the *Second. *203] This new method entirely depends upon a string of legal fictions; no actual lease is made, no actual entry by the plaintiff, no actual ouster by the defendant; but all are merely ideal, for the sole purpose of trying the title.♦

(P) Styl. Pract. Reg. 108, edit. 1657.

3 When the remedy by ejectment is pursued in an inferior court, the fictions of the modern system are not applicable; for inferior courts have not the power of framing rules for confessing lease, entry, and ouster, nor the means, if such rules were entered into, of enforcing obedience to them. 1 Keb. 690, 795. Gilb. Eject. 38. Adams on Eject. 173. If the rule requiring service of notice upon the tenant in possession cannot be observed on account of his having quitted, and his place of residence is unknown, (2 Stra. 1064. 4 T. R. 464,) the claimant must resort to the ancient practice, (Ad. Eject. 181,) except in particular cases, provided for by the 4 Geo. II. c. 28, 11 Geo. II. c. 19, and 57 Geo. III. c. 52.-CHITTY.

An actual entry is necessary to avoid a fine levied with proclamations, according to the statute 4 Hen. VII. c. 24, (see book 2, p. 352;) and the demise laid in the ejectment must be subsequent to the entry: but that is the only case in which an actual entry is required, (2 Stra. 1086. Doug. 468. 1 T. R. 741. 4 Bro. P. C. 353. 3 Burr. 1895. 7 T. R. 433.` 1 Prest. Conv. 207. 9 East, 17;) unless it is an ejectment brought to recover on a vacant possession, and not by a landlord upon a right of re-entry under the 4 Geo. II. c. 28; in which case the lessor or his attorney must actually seal a lease upon the premises to the plaintiff, who must be ejected by a real person. See the mode of proceeding, 2 Crompt. Prac. 198.-CHRISTIAN.