Sivut kuvina

plainly and clearly chalked out in that most ancient and highly venerable collection of legal forms, the registrum omnium brevium, or register of such writs as are suable out of the king's courts, upon which Fitzherbert's natura brevium is a comment; and in which every man who

*is injured will be sure to find a method of relief, exactly adapted [*184] to his own case, described in the compass of a few lines, and yet without the omission of any material circumstance. So that the wise and equitable provision of the statute Westm. 2. 13 Ed. I. c. 24. for framing new writs when wanted, is almost rendered useless by the very great perfection of the ancient forms. And indeed I know not whether it is a greater credit to our laws, to have such a provision contained in them, or not to have occasion, or at least very rarely, to use it.

In the times of our Saxon ancestors, the right of possession seems only to have been recoverable by writ of entry (a), which was then usually brought in the county-court. And it is to be observed, that the proceedings in these actions were not then so tedious when the courts were held, and process issued from and was returnable therein at the end of every three weeks, as they became after the conquest, when all causes were drawn into the king's courts, and process issued only from term to term: which was found exceeding dilatory, being at least four times as slow as the other. And hence a new remedy was invented in many cases, to do justice to the people, and to determine the possession in the proper counties, and yet by the king's judges. This was the remedy by assise, which is called by statute Westm. 2. 13 Edw. I. c. 24. festinum remedium, in comparison with that by a writ of entry; it not admitting of many dilatory pleas and proceedings, to which other real actions are subject (b).

2. The writ of assise is said to have been invented by Glanvil, chief justice to Henry the Second (c); and, if so, it seems to owe its introduction to the parliament held at Northampton, in the twenty-second year of that prince's reign; when justices in eyre were appointed to go round the kingdom in order to take these assises: and the assises themselves (particu larly those of mort d'ancestor and novel disseisin) were clearly pointed out and described (d). As a writ of entry is a real ac- [*185] tion,30which disproves the title of the tenant by shewing the unlawful commencement of his possession; so an assise is a real action, which proves the title of the demandant merely by shewing his, or his ancestor's possession (e); and these two remedies are in all other respects so totally alike, that a judgment or recovery in one is a bar against the other; so that when a man's possession is once established by either of these possessory actions, it can never be disturbed by the saine antagonist in any other of them. The word assise is derived by sir Edward Coke (ƒ) from the Latin assiden, to sit together: and it signifies, originally, the jury who try the cause, and sit together for that purpose. By a figure, it is now made to signify the court or jurisdiction, which summons this jury together by a commission of assise, or ad assisas capiendas; and hence the judicial as

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semblies held by the king's commission in every county, as well to take these writs of assise, as to try causes at nisi prius, are termed in common speech the assises. By another somewhat similar figure, the name of assise is also applied to this action, for recovering possession of lands; for the reason, saith Littleton (g), why such writs at the beginning were called assises, was, for that in these writs the sheriff is ordered to summon a jury, r assise; which is not expressed in any other original writ (h).

This remedy, by writ of assise, is only applicable to two species of injury by ouster, viz. abatement, and a recent or novel disseisin. If the abatement happened upon the death of the demandant's father or mother, brother or sister, uncle or aunt, nephew or niece, the remedy is by an assise of mort d'ancestor, or the death of one's ancestor. This writ directs the sheriff to summon a jury or assise, who shall view the land in question, and recognize whether such ancestor was seised thereof on the day of his death, and whether the demandant be the next heir (i): soon after which the

judges come down by the king's commission to take the recogni[*186] tion of assise: when, if these points are found in the affirmative,

the law immediately transfers the possession from the tenant to the demandant. If the abatement happened on the death of one's grandfather or grandmother, then an assise of mort d'ancestor no longer lies, but a writ31of ayle or de avo: if on the death of the great-grandfather or greatgrandmother, then a writ of besayle, or de proavo: but if it mounts one degree higher, to the tresayle, or grandfather's grandfather, or if the abatement happened upon the death of any collateral relation, other than those before-mentioned, the writ is called a writ of cosinage, or de consanguineo (k). And the same points shall be inquired of in all these actions ancestrel, as in an assise of mort d'ancestor; they being of the very same nature (1): though they differ in this point of form, that these ancestrel writs (like ali other writs of praecipe) expressly assert a title in the demandant, (viz. the seisin of the ancestor at his death, and his own right of inheritance,) the assise asserts nothing directly, but only prays an inquiry whether those points be so (m). There is also another ancestrel writ, denominated a nuper obiit, to establish an equal division of the land in question, where, on the death of an ancestor, who has several heirs, one enters and holds the others out of possession (4). But a man is not allowed to have any of these actions ancestrel for an abatement consequent on the death of any collateral relation, beyond the fourth degree (o); though in the lineal ascent he may proceed ad infinitum (p). For there must be some boundary; else the privilege would be universal, which is absurd and therefore the law pays no regard to the possession of a collateral ancestor, who was no nearer than the fifth degree.

It was always held to be law (q), that where lands were devisable in a man's last will by the custom of the place, there an assise of mort d'ancestor did not lie. For, where lands were so devisable, the right of possession could never be determined by a process, which inquired only of these two points, the seisin of the ancestor, and the heirship of the demandant. And hence it may be reasonable to conclude, that when the *187] *statute of wills, 32 Hen. VIII. c. 1. made all socage lands devis. (g) 234.

(h) Co. Litt. 159.

(1) F. N. B. 195. Finch, L. 290.

(k) Finch, L. 266 267.

(1) Stat. Westm 2. 13 Edw I. c. 20.

(2 Inst. 399

(n) F. N. B. 197. Finch, L. 298.
(0) Hale on F. N. B. 221.

(p) Fitzh. Abr. tit. cosinage, 15.

(q) Bracton, I. 4. de assis. mortis antecessoris, & 13, 3. F. N. B. 196.

(1) See Hov. n. (31) at the end of the Vol. B. III

aD.e an assise of mort d'ancestor no longer could be brought of lands held in socage (r); and that now, since the statute 12 Car. II. c. 24 (which converts all tenures, a few only excepted, into free and common socage) no assise of mort d'ancestor can be brought of any lands in the king dom, but that, in case of abatements, recourse must be properly had to the writs of entry.

An assise of novel (or recent) disseisin is an action of the same nature with the assise of mort d'ancestor before-mentioned, in that herein the demandant's possession must be shewn. But it differs considerably in other points; particularly in that it recites a complaint by the demandant of the disseisin committed, in terms of direct averment; whereupon the sheriff is commanded to reseise the land and all the chattels thereon, and keep the same in his custody till the arrival of the justices of assise (which in fact hath been usually omitted) (s); and in the mean time to summon a jury to view the premises, and make recognition of the assise before the justices (t). At which time the tenant may plead either the general issues nul tort, nul disseisin, or any special plea. And if, upon the general issue, the recognitors find an actual seisin in the demandant, and his subsequent disseisin by the present tenant; he shall have judgment to recover his seisin, and damages for the injury sustained: being the only case in which damages were recoverable in any possessory actions at the common law (u); the tenant being in all other cases allowed to retain the intermediate profits of the land, to enable him to perform the feodal service. But costs and damages were annexed to many other possessory actions by the statutes of Marlberge, 52 Hen. III. c. 16. and Gloucester, 6 Edw. I. c. 1. And *to prevent frequent and vexatious disseisins, it is enacted by the [*188] statute of Merton, 20 Hen. III. c. 3, that if a person disseised recover seisin of the land again by assise of novel disseisin, and be again diseised of the same tenements by the same disseisor, he shall have a writ of re-disseisin; and if he recover therein, the re-disseisor shall be imprisoned; and by the statute of Marlberge, 52 Hen. III. c. 8, shall also pay a fine to the king to which the statute Westm. 2. 13 Edw. I. c. 26. hath superadded double damages to the party aggrieved. In like manner, by the same statute of Merton, when any lands or tenements are recovered by assise of mort d'ancestor, or other injury, or any judgment of the court, if the party be afterwards disseised by the same person against whom judgment was obtained, he shall have a writ of post-disseisin against him; which subjects the post-disseisor to the same penalties as a re-disseisor. The reason of all which, as given by sir Edward Coke (w), is because such proceeding is a contempt of the king's courts, and in despite of the law; or, as Bracton more fully expresses it (z), “talis qui ita convictus fuerit, dupliciter delinquit contra regem: quia facit disseisinam et roberiam contra pacem suam; et etiam ausu temerario irrita facit ea, quae in curia domini regis rite acta sunt: et propter duplex delictum merito sustinere debet poenam dupli


In all these possessory actions there is a time of limitation2settled, bevond which no man shall avail himself of the possession of himself or his ancestors, or take advantage of the wrongful possession of his adversary. For, if he be negligent for a long and unreasonable time, the law refuses afterwards to lend him any assistance, to recover the possession merelv.

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(2 See Hov n. (32) at the end of the Vol. B I

both to punish his neglect (nam leges vigilantibus, non dormientibus, subve niunt), and also because it is presumed that the supposed wrongdoer has ir such a length of time procured a legal title, otherwise he would sooner have been sued. This time of limitation by the statute of Merton, 20 HenIII. c. 8. and Westm. 1. 3 Edw. I. c. 39. was successively dated from particular eras, viz. from the return of king John from ireland [*189] and from the coronation, &c. of king Henry *the Third. But this date of limitation continued so long unaltered, that it became in deed no limitation at all; it being above three hundred years from Henry the Third's coronation to the year 1540, when the present statute of limi tations (y) was made. This, instead of limiting actions from the date of a particular event, as before, which in process of years grew absurd, took another and more direct course, which might endure for ever: by limiting a certain period, as fifty years for lands, and the like period (z) for customary and prescriptive rents, suits and services (for there is no time of limitation upon rents created by deed, or reserved on a particular estate) (a), and enacting that no person should bring any possessory action, to recover possession thereof merely upon the seisin, or dispossession of his ancestors, beyond such certain period. But this does not extend to services, which by common possibility may not happen to become due more than once in the lord's or tenant's life; as fealty, and the like (b). And all writs, grounded upon the possession of the demandant himself, are directed to be sued out within thirty years after the disseisin complained of; for if it be an older date, it can with no propriety be called a fresh, recent, or novel disseisın; which name sir Edward Coke informs us was originally given to this proceeding, because the disseisin must have been since the last eyre or circuit of the justices, which happened once in seven years, otherwise the action was gone (c). And we may observe (d), that the limitation, prescribed by Henry the Second at the first institution of the assise of novel dissersin, was from his own return into England, after the peace made between him and the young king his son; which was but the year before.

What has been here observed may throw some light on the doc[*190 trine of remitter, which we spoke of in the second chapter of this book; and which we may remember was where one who hath right to lands, but is out of possession, hath afterwards the freehold cast upon him by some subsequent defective title, and enters by virtue of that title. In this case the law remits him to his ancient and more certain right, and by an equitable fiction supposes him to have gained possession in consequence, and by virtue thereof: and this, because he cannot possibly obtain judgment at law to be restored to his prior right, since he is himself the tenant of the land, and therefore hath nobody against whom to bring his action. This determination of the law might seem superfluous to an hasty observer; who perhaps would imagine, that since the te nant hath now both the right and also the possession, it little signifies by what means such possession shall be said to be gained. But the wisdom of our ancient law determined nothing in vain. As the tenant's possession was gained by a defective title, it was liable to be overturned by lowed, make it only forty years for rents, &c (a) 8 Rep. 65.

(y) 32 Hen. VIII. c. 2.

(2) So Berthelet's original edition of the statute, A. D. 1540: and Cay's, Pickering's, and Ruffhead's nditions, examined with the record. Rastell's and other intermediate editions, which sir Edward Coke

!nst. 95.) and other subsequent writers have fol

(b) Co. Litt. 115.

(c) 1 Inst. 153. Booth, 210.
(d) See pago 184

newing that defect in a writ of entry;3and then he must have been dri ven to his writ of right, to recover his just inheritance which would have been doubly hard, because during the time he was himself tenant, he could not establish his prior title by any possessory actions. The law therefor remits him to his prior title, or puts him in the same condition as if he had recovered the land by writ of entry. Without the remitter, he would have had jus, et seisinam separate; a good right, but a bad possession: now, by the remitter, he hath the most perfect of all titles, juris et seisinae conjunctionem.

III. By these several possessory remedies the right of possession may be restored to him that is unjustly deprived thereof. But the right of possession (though it carries with it a strong presumption) is not always conclusive evidence of the right of property, which may still subsist in another man. For, as one man may have the possession, and [*191] another the right of possession, which is recovered by these pos

sessory actions; so one man may have the right of possession, and so not be liable to eviction by any possessory action, and another may have the right of property, which cannot be otherwise asserted than by the great and final remedy of a writ of right, or such correspondent writs as are in the nature of a writ of right.34

This happens principally in four cases: 1. Upon discontinuance by the alienation of tenant in tail whereby he, who had the right of possession, hath transferred it to the alienee; and therefore his issue, or those in remainder or reversion, shall not be allowed to recover by virtue of that possession, which the tenant hath so voluntarily transferred. 2, 3. In case of judgment given against either party, whether by his own default, or upon trial of the merits, in any possessory action: for such judgment, if obtained by him who hath not the true ownership, is held to be a species of deforcement; which however binds the right of possession, and suffers it not to be ever again disputed, unless the right of property be also proved. 4. In case the demandant, who claims the right, is barred from these possessory actions by length of time and the statute of limitations before-mentioned for an undisturbed possession for fifty years ought not to be devested by any thing, but a very clear proof of the absolute right of property. In these four cases the law applies the remedial instrument of either the writ of right itself, or such other writs as are said to be of the same na



1. And first, upon an alienation by tenant in tail, whereby the estatetail is discontinued, and the remainder or reversion is by failure of the particular estate displaced, and turned into a mere right, the remedy is by action of formedon (secundum formam doni), which is in the nature of a writ of right (e), and is the highest action that tenant in tail can have (ƒ). For he cannot have an absolute writ of right, which is confined only to such as claim in fee-simple: and for that reason this writ of formedon was granted him by the statute de donis or *Westm. 2. 13 [*192] Edw. I. c. 1, which is therefore emphatically called his writ of right (g). This writ is distinguished into three species: a fermedon in the descender, in the remainder, and in the reverter. A writ of formedon in the descender lieth, where a gift in tail is made, and the tenant in tail alienes the lands entailed, or is disseised of them, and dies; in this case the heir e Finch, L. 267

(Co. Litt. 316

(g) F. N. B. 255.

(34) Ib. (34) B. II:

(33) See Hov. n. (33) at the end of the Vol. B. III

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