because the form of a writ of entry, in that case, is, that the tenant had not entry, but by or under a prior alienee, to whom the intruder demised it; "non habuit ingressum nisi per Ricardum, cui Gulielmus illud dimisit qui se in illud intrusit" (he had no entry but through Richard, to whom William, who had intruded on the land, demised it). (s) These degrees thus state the original wrong, and the title of the tenant who claims under such wrong. If more than two degrees (that is, two alienations or descents) were past, there lay no writ of entry at the common law. For, as it was provided, for the *quietness of men's inheritances, that no one, even though [*182] he had the true right of possession, should enter upon him who had the apparent right by descent or otherwise, but he was driven to his writ of entry to gain possession; so, after more than two descents or two conveyances were passed, the demandant, even though he had the right both of possession and property, was not allowed this possessory action; but was driven to his writ of right, a long and final remedy, to punish his neglect in not sooner putting in his claim, while the degrees subsisted, and for the ending of suits, and quieting all controversies. (t) But by the statute of Marlbridge, 52 Hen. III, c. 30, it was provided, that when the number of alienations or descents exceeded the usual degrees, a new writ should be allowed without any mention of degrees at all. And, accordingly, a new writ has been framed, called a writ of entry in the post, which only alleges the injury of the wrong-doer, without deducing all the intermediate title from him to the tenant; stating it in this manner: that the tenant had not entry unless after or subsequent to, the ouster or injury done by the original dispossessor; "non habuit ingressum nisi post intrusionem quam Gulielmus in illud fecit" (he had no entrance but after the intrusion which William made on it); and rightly concluding, that, if the original title was wrongful, all claims derived from thence must participate of the same wrong. Upon the latter of these writs it is (the writ of entry sur disseisin (on disseisin) in the post) that the form of our common recoveries of landed estates (u) is usually grounded; which, we may remember, were observed in the preceding volume (v) to be fictitious actions brought against the tenant of the freehold (usually called the tenant to the præcipe, or writ of entry), in which, by collusion, the demandant recovers the land. Writ of dower. This remedial instrument, or writ of entry, is applicable to all the cases of ouster before-mentioned, except that of discontinuance by tenant in tail, and some peculiar species of deforcements. Such is that of deforcement of dower, by not assigning any dower to the widow within the time limited by law; for which she has her remedy by writ of dower, [*183] unde nihil habet (whereby she has nothing). (w) But if she be deforced of part only of her dower, she cannot then say that nihil habet; and, therefore, she may have recourse 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 same nature as the grand writ of right, whereof we shall pres " (t) 2 Inst. 153. (u) See book II, Append. No. V. ently speak, is with regard to claims in fee-simple. (a) On the other hand, if the heir (being within age), or his guardian, assign her more than she ought to have, they may be remedied by a writ of admeasurement of dower. (y) But, in general, the writ of entry is the universal remedy to recover possession, when wrongfully withheld from the owner. Forms of writ of entry. It were, therefore, endless to recount all the several divisions of writs of entry, which the different circumstances of the respective demandants may require, and which are furnished by the laws of England: (2) being 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 [*184] *is injured will be sure to find a method of relief exactly adapted 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 Edw. 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. Ancient remedy in county court. 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 exceedingly 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 (the speedy remedy), (x) Ibid. 16. (y) F. N. B. 148. Finch, L. 314. Stat. Westm. 2. 13 Ed. I, c. 7. (z) See Bracton, 1. 4, tr. 7. c. 6, § 4. Britton, c. 114, fol. 264. The most usual were, 1. The writs of entry sur disseisin, and of intrusion, (F. N. B. 191, 203) which are brought to remedy either of those species of ouster. 2. The writs of dum fuit infra ætatem (while he was under age), and dum fuit non compos mentis (while he was of unsound mind), (Ibid. 192, 202) which lie for a person of full age, or one who hath recovered his understanding, after having (when under age or insane) aliened his lands; or for the heirs of such alienor. 3. The writs of cui in vita (whom in his lifetime), and cui ante divortium (whom before divorce), (Ibid. 193, 204) for a woman, when a widow or divorced, whose husband during the coverture (cui in vita sua, vel cui ante divortium, ipsa contradicere non potuit: whom in his lifetime, or whom before divorce, she could not contradict) hath aliened her estate. 4. The writ ad communem legem (at common law), (Ibid. 207) for the reversioner of the alienation and death of the particular tenant for life. 5. The writs in casu proviso (in the case provided) and in consimili casu (in the like case), (Ibid. 205, 206) which lay not ad communem legem, but are given by stat. Gloc. 6 Edw. I, c. 7, and Westm. 2, 13 Edw. I, c. 24, for the reversioner after the alienation, but during the life, of the tenant in dower or other tenant for life. 6. The writ ad terminum qui præteriit, (Ibid. 201) for the reversioner, when the possession is withheld by the lessee or a stranger after the determination of a lease for years. 7. The writ causa matrimonii prælocuti (in consideration of a marriage before agreed on) (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 in case of other deforcements. (a) Gilb. Ten. 42. 1 Both these writs were abolished by the common law procedure act, 1860, and a writ of summons from the common pleas substituted. 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. (¿) 2. The writ of assize 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 twentysecond year of that prince's reign; when justices in eyre were appointed to go round the kingdom in order to take these assizes: and the assizes themselves (particularly those of mort d'ancestor (death of the ancestor) and novel disseisin: new disseisin) were clearly pointed out and described. (d) As a writ of entry *is a real action which disproves the title of the tenant by show. [*185] ing the unlawful commencement of his possession; so an assize is a real action, which proves the title of the demandant merely by showing 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 same antagonist in any other of them. The word assize is derived by Sir Edward Coke(f) from the Latin assideo, 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 assize, or ad assisas capiendas; and hence the judicial assemblies held by the king's commission in every county, as well to take these writs of assize, as to try causes at nisi prius, are termed in common speech the assizes. By another somewhat similar figure, the name of assize 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 assizes, was, for that in these writs the sheriff is ordered to summon a jury, or assize; which is not expressed in any other original writ. (h) This remedy, by writ of assize, 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 assize of mort d'ancestor, or the death of one's ancestor. This writ directs the sheriff to summon a jury or assize, who shall view the land in question, and recognize whether such ancestor was seized thereof on the day of his death, and whether the demandant be the next heir: (2) soon after which the judges (b) Booth, 262. (c) Mirror, c. 2, § 25. (d) § 9. Si dominus feodi negat hæredibus defuncti saisinam ejusdem feodi, justitiarii domini regis faciant inde fieri, recognitionem per xii legales homines, qualem saisinam defunctus inde habuit, die qua fuit vivus et mortuus; et sicut recognitum fuerit, ita hæredibus ejus restituant. $10. Justitiarii domini regis faciant fieri recognitionem de dissaisinis factis super assisam, a tempore quo dominus rex venit in Angliam proxime post pacem factam inter ipsum et regem filium suum. (If the lord of the fee refuse to the heirs of the deceased seisin of the same fee, the king's justices may cause an inquiry to be made by twelve lawful men, of what seisin the deceased had on the day of his death, and according to the result of such inquiry it shall be restored to his heirs. $10. The king's justices shall cause an inquiry to be made of the disseisins made upon assize, from the time at which the king came into England, next after the peace made between him and his son.) (Spelm. Cod. 330.) (e) Finch, L. 284. (f) 1 Inst. 153. (i) F. N. B. 195. Finch, L. 290. (g) § 234. (h) Co. Litt. 159. 1 Writs of assize and entry are now abolished. came down by the king's commission to take the recognition of assize: when, if these points are found in the affirmative, the [*186] 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 assize of mort d'ancestor no longer lies, but a writ of ayle or de avo (from the grandfather): if on the death of the great-grandfather or great-grandmother, then a writ of besayle or de proavo (from the great-grandfather): 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)1 And the same point shall be inquired of in all these actions ancestrel, as in an assize 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 all other writs of præcipe) expressly assert a title in the demandant (viz.: the seisin of the ancestor at his death and his own right of inheritance), the assize asserts nothing directly, but only prays an inquiry whether those points be so. (m) There is also another ancestrel writ, denominated a nuper obiit (he lately died), 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. (n) 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; (2) 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 divisible in a man's last will by the custom of the place, there an assize of mort d'ancestor did not lie. For, where lands were so divisible, 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 [*187] conclude, that when the *statute of wills, 32 Hen. VIII, c. 1, [*187] made all socage lands divisible, an assize of mort d'ancestor no longer could be brought of lands held in socage; (r) and that now, since the statute 12 Čar. II, c. 24 (which converts all tenures, a few only excepted, into free and common socage), no assize of mort d'ancestor can be brought of any lands in the kingdom, but that, in case of abatements, recourse must be properly had to the writs of entry. An assize of novel (or recent) disseisin is an action of the same nature with the assize of mort d'ancestor before-mentioned, in that herein the demandant's possession must be shown. But it differs considerably in other points; particularly in that it recites a com (k) Finch, L. 266, 267. (1) Stat. Westm. 2, 13 Edw. I, c. 20. (n) F. N. B. 197. Finch, L. 293. (0) Hale on F. N. B. 221. (9) Bracton. l. 4 de assis. mortis antecessoris (concerning the tor), c. 13, § 3. F. N. B. 196. (r) See 1 Leon. 267. (m) 2 Inst. 399. (p) Fitz. Abr. tit cosinage, 15. assize of the death of the ances 1 All the writs mentioned were abolished by statute 3 and 4 Wm. IV, c. 27. plaint by the demandant of the disseisin committed in terms of direct averment; whereupon the sheriff is commanded to reseize the land and all the chattels thereon, and keep the same in his custody till the arrival of the justices of assize (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 assize before the justices. (t) At which time the tenant may plead either the general issues nul tort, nul disseisin (no wrong, no 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 action 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 feudal services. But costs and damages were annexed to many other possessory actions by the statutes of Marlberge, 52 Hen. III, c. 16, and of Gloucester, 6 Edw. I, c. 1. And to prevent frequent and vexatious disseisins, it is enacted by the statute of Mer- [*188] ton, 20 Hen. III, c. 3, that if a person disseised recover seisin of the land again by assize of novel disseisin, and be again disseised 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 assize of mort d'ancestor, or other jury, 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 postdisseisor 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, (x) "talis qui ita convictus fuerit, dupliciter delinquit contra regem: quia facit disseisinam et roberiam contra pacem suam; et etiam ausu temerario irrita facit ea, quæ in curia domini regis rite acta sunt; et propter duplex delictum merito sustinere debet pænam duplicatam" (he who is so convicted offends doubly against the king; first, because he makes a disseisin and robbery against his peace; and secondly, by a rash undertaking sets at defiance the just decisions of the king's court: and for this double offence he deserves a double punishment). Statute of limitation. In all these possessory actions there is a time of limitation settled, beyond 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 merely, both to (s) Booth, 211. Bract. 4, 1, 19, § 7. (u) Bract. 187. Stat. Marlbr. c. 16. (63) (t) F. N. B. 177. (x) L. 4, tr. 1, c. 49. |