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 degree subsisted, and for the ending of suits, and quieting of 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 wrongdoer, 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 ;" 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 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 actions27brought against the tenant of the freehold (usually called the tenant to the praecipe, or writ of entry), in which by collusion the demandant recovers the land. 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,28 by not assigning any dower to the widow within the [*183] time limited by *law; for which she has her remedy by writ of On dower, unde nihil habet (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 presently speak, is with regard to claims in fee-simple (x). 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. 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 (z): being (t) 2 Inst. 153. (u) See Book II. Append. No. V. (v) Book II. ch. 21. (w) F. N. B. 147. (x) Ibid. 16. (y) F. N. B. 148. Finch, L. 314 Stat. Westm. 2. 13 Ed. I. c. 7 (z) See Bracton, l. 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 aetatem, and dum fuit non compos mentis: (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, and cui ante divortium : (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) hath aliened her estate. 4. The writ ad communem legem: (Ibid. 207.) for the reversioner, after the alienation and death of the particular tenant for life. 5. The writs in casu proviso and in consimili casu: (Ibid. 205, 206.) which lay not ad communem legem, but are given by stat. Gloc. 6 Ed. I. c. 7. and Westm. 2. 13 Ed. 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 praeterit: (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 (28) Ibid. (28) B. III. (27) See Hov. n. (27) at the end of the Vol. B. III. 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 (particularly 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,30 which 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 same antagonist in any other of them. The word assise is derived by sir Edward Coke (f) 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 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, or 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 writ of 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 all 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 (2). 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 able, 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 kingdom; 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 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 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 duplicatam." In all these possessory actions there is a time of limitation32settled, 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 ; (r) See 1 Leon. 267. (8) Booth, 211. Bract. 4. 1. 19, ◊ 7. (t) F. N. B. 177. VOL. II. (u) Bract. 187. Stat. Marlbr. c. 16. (32) Sec Hov. n. (32) at the end of the Vol. B. III. both to punish his neglect (nam leges vigilantibus, non dormientibus, subveniunt), and also because it is presumed that the supposed wrongdoer has in 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 indeed 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 limitations (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 (2) 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 disseisin; 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 disseisin, 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 tenant 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. (z) So Berthelet's original edition of the statute, A. D. 1540: and Cay's, Pickering's, and Ruffhead's editions, examined with the record. Rastell's and other intermediate editions, which sir Edward Coke (2 Inst. 95.) and other subsequent writers have fol (b) Co. Litt. 115. (e) 1 Inst. 153. Booth, 210. |