ment of the lease until the expiration of it at Midsummer, 1800. On the 3d of August, 1780, Miss Thomazine Taylor, the lessor, gave directions to her attorney to prepare her will; by which she gave to certain persons the premises in question, in trust for Elizabeth Cook (who was therein named Mary Cook) and her heirs for ever; but the jury found that the lessor of the plaintiff was the person intended by that description. Before any will was made under these instructions, Miss Thomazine Taylor died. These instructions were, upon the 25th of February, 1782, pronounced for, and established as, the only will of Miss Thomazine Taylor, by the prerogative court, and probate thereof was afterwards granted accordingly. Upon the 21st June, 1782, Thomas Danvers, father to the present defendant, was admitted as heir at law to the premises in question, in the accustomed form.

The rent was paid to Thomas Danvers from the tine of Miss Thomazine Taylor's death, until his own death in January, 1791; and from that time till the expiration of the lease, to his son James Danvers, the defendant, who, upon his father's death, was admitted, 3d May, 1791, to the premises

as his heir at law, in the same form *as his father was [*43] admitted. And, upon the expiration of the lease, made a new demise to Mrs. Whiting, under which the latter held, and paid rent as tenant to the defendant, at the time of the demises laid in the declaration. The lessor of the plaintiff Elizabeth was admitted to the premises upon the 1st of December, 1801. Her marriage with the other lessor was proved at the trial and it was also proved that the testatrix had no other relative of the name of Cook, except the lessor of the plaintiff Elizabeth, and that she was the person who was intended to take by the name of Mary Cook, as described in the instructions of the 3d of August, 1780. The question for the opinion of the court was, whether the lessors of the plaintiff were, under the above circumstances, entitled to recover.

The lessor of the plaintiff Elizabeth Cook, claimed the premises in question under the will of Thomazine Taylor, by the description of copyhold; to which premises Thomazine had been before admitted, by the description of all that customary tenement, habendum to her and her heirs, tenendum of the lord by the rod, according to the custom, &c. and had before surrendered by the description of customary lands, &c. holden by copy of court-roll, to such uses as she, by her last will and testament in writing, should appoint. But though the testatrix died in August, 1780, and the will was established in February, 1782, yet, owing to an outstanding lease granted by the testatrix in her life-time, which did not expire till June, 1800, the devisee did not enter, or bring ejectment, till Hilary term, 1802, but suffered the heir at law of the testatrix, who was admitted

to the premises in 1782, and afterwards the defendant, [*44] his son, *to whom they descended in 1791, to take the rent during the intermediate time; and this although there was a proviso in the lease for re-entry, in the case of non-payment of rent.

Upon these facts four objections were taken; the first and second were on the construction of the statute of frauds; the third was, that the lessor's right of entry was either tolled by the descent cast on the defendant, or, fourthly, it was barred by the statute of limitations; and that either, first, by the non-receipt of rent under the lease granted by the testatrix for more than twenty years since her death; and the defendant and his father having, during all that time, had an adverse enjoyment of such rent, and of the premises: or, secondly, by the lessor Elizabeth not having availed herself for more than twenty years of her right of entry under the proviso in the lease for nonpayment of rent, or otherwise.

It was argued for the defendant, that considering the estate as copyhold, the admittance "was the investiture of the tenant, and no attornment is necessary;" and a copyholder having a right or title to admittance, which vests in him the whole seisin,

is barred if he do not claim to be admitted within twenty years. Here, however, it was the stronger, because the defendant and his father, heirs at law of the testatrix, had an adverse possession, by admission, and by the receipt of the rents and profits for above twenty years since the lessor's title accrued. For an heir is in by descent, and may bring ejectment before admittance, though a devisee or surrenderee cannot; and on admittance upon descent, the heir is tenant immediately from the death of his ancestor.

*2dly. Taking the premises to be freehold, the les- [*45 ] sor of the plaintiff was also barred by his laches; and it was no answer to say, that the outstanding lease, which continued to run till Midsummer, 1800, prevented his entry before; for it was still competent in him to have entered, without committing a trespass; as to demand rent, or fealty, or to obtain seisin of the freehold. [Mr. Justice Lawrence.-Must not an en try, to avoid the statute of limitations, be an entry for the purpose of taking possession? and how could the lesssor have lawfully entered for that purpose during the continuance of the lease?] If this were so, a right of entry might be preserved even after an ouster of the rents and profits, for above sixty or a thousand years; which would entirely defeat the object of the statute, which was to quiet men's possessions: and it would be incongruous to hold, that an ejectment might be maintained after a real action was barred by length of time; and that such an effect should be produced by a tenancy from year to year, or even a tenancy at will.

Taylor against Horde, (a) was cited, to prove that a tenant in possession enjoys as the covenanted bailiff of the tenant of the freehold and as a recovery of a term does not displace the freehold, so, according to Co. Litt. s. 411. there may be a disseisin of the freehold, pending a term, which shall be no ouster of a term. But Taylor against Horde shows that a mere entry on the land for another purpose, does not operate as a dissei

(a) 1 Burr. 118.

sin of the tenant in possession, so as to make a good tenant to the præcipe.

[46] *[Lord Ellenborough, Ch. J.-Disseisin is said to be a personal trespass, a tortious ouster of the seisin of another. And in Salk. 246. Lord Holt says, there can be no disseisin without an actual expulsion.[1] But can you show that the devisee could have entered to vest the seisin in herself without committing a trespass upon the tenant in possession? because the law does not require a person to do that which would make him a wrongdoer.][2]

She might have had a writ of entry during the continuance of the lease, for the purpose of asserting and establishing her right.

Ouster of seisin is distinct from ouster of possession. Receipt of rent by a stranger is a disseisin ;(a) and yet there is no ouster of possession. And, at any rate, there might have been a symbolical delivery of customary lands in lease by admittance, subject to the lease. Besides, the devisee might have brought a real action, wherein the judgment is ut haberet seisinam, &c. without saying any thing of the possession: and there the demandant counts upon his seisin, and not upon possesion, as in ejectment. And if the fact of the lands being in lease do not bar the seisin of the owner, there is no reason why it should not bar his entry for the purpose of giving him seisin.

The devisee might have justified in trespass brought by the tenant, that she entered in order to vest the seisin in herself, or to assert her right, whatever it might be, against the [*47] party claiming and taking the rent, and not to *oust

(a) At the election of the party. Cro. Car. 303.

[1] Vide page 20, note [1.] [2] Vide page 41, note [1.]

the tenant. She might also have entered to distrain for the rent. And, at all events, as there was a clause in the lease for re-entry in default of payment of the rent, the devisee might have availed herself of the forfeiture to enter and keep possession above twenty years ago.

The statute of limitations has always been construed favourably with a view to quiet possession. And the question, whether the receipt of rent by one tenant in common for above twenty years, were an ouster of his companion could never have occurred, if an adverse receipt of rent for such a length of time had not been considered as a bar.

Now here the defendant, and his father before him, have had an adverse possession by the receipt of the rent for above twen ty years, which is not only a bar to the lessor's remedy, by ejectment, but gives the defendant a title to the possession, from whence he can only be removed by a real action: and that this distinguished the case from Orrel against Maddox, Runn. Eject. 458. where the only question was, whether it was neces sary for the lessor of the plaintiff to show a receipt of rent within twenty years, on an outstanding lease, which was holden not to be necessary.

For the plaintiff it was answered, that a descent could only toll an entry where an entry might lawfully have been made; but the devisee had no right of entry pending the lease granted by testatrix, which did not expire till 1800; and the law will never compel a person to be guilty of

a trespass in order to acquire a right. No *other [*48] right or title of entry is within the statute of limitations, except that which is accompanied by a right of possession, which the lessor could not have pending the lease. And the payment of the rent during part of the time to the defendant and his father, would not of itself, make the holding of the tenant wrongful, but it still continued legal under the original term, as the lessor was not bound to take advantage of the for