from the perfon fo feifed to himself; to which the tenant may answer by denying the demandant'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 fhewn, it then puts the demandant upon the proof of his title: in which if he fails, or if the tenant hath shewn a better, the demandant and his heirs are perpetually barred of their claim; but if he can make it appear that his right is fuperior to the tenant's, he shall recover the land against the tenant and his heirs for ever. But even this writ of right, however fuperior to any other, cannot be fued out at any distance of time. For by the antient law no seifin could be alleged by the demandant, but from the time of Henry the firft; by the ftatute of Merton, 20 Hen. III. c. 8. from the time of Henry the fecond; by the ftatute of Westm. 1. 3 Edw. I. c. 39. from the time of Richard the firft; and now, by statute 32 Hen. VIII. c. 2. feifin in a writ of right fhall be within fixty years. So that the possession of lands in fee-fimple uninterruptedly, for threefcore years, is at prefent a fufficient title against all the world; and cannot be impeached by any dormant claim whatsoever.

I HAVE now gone through the several species of injury by oufter and difpoffeffion of the freehold, with the remedies applicable to each. In confidering which I have been unavoidably led to touch upon much obfolete and abstruse learning, as it lies intermixed with, and alone can explain the reafon of, those parts of the law which are now more generally in ufe. For, without contemplating the whole fabric together, it is impoffible to form any clear idea of the meaning and connection of thofe disjointed parts, which still form a confiderable branch of the modern law; fuch as the doctrine of entries and remitter, the levying of fines, and the suffering of common recoveries. Neither indeed is any confiderable part of that, which I have selected in this chapter from among the venerable monuments of our ancestors, so abso

f Glany. 2. c. 3. Co. Litt. 114.

lutely

lutely antiquated as to be out of force, though the whole is certainly out of use: there being but a very few inftances for more than a century past of profecuting any real action for land by writ of entry, affife, formedon, writ of right, or otherwife. The forms are indeed preferved 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 affign the reason. But the title of lands is now usually tried in actions of ejectment or trefpafs, of which in the fol lowing chapters.

CHAPTER THE ELEVENTH.

OF DISPOSSESSION, OR OUSTER, OF CHATTELS REAL.

H

AVING in the preceding chapter confidered with fome attention the several species of injury by disposfeffion 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 poffeffion only, or else to recover at once the poffeffion, and also to establish the right of property; the method which I there marked out leads me next to confider injuries by oufter of chattels real; that is, by amoving the poffeffion of the tenant from an estate by ftatute-merchant, ftatute-staple, recognizance in the nature of it, or elegit; or from an estate for years.

I. OUSTER, or amotion of poffeffion, from eftates held by ftatute, recognizance, or elegit, is only liable to happen by a fpecies of diffeifin, or turning out of the legal proprietor, before his eftate is determined by raising the fum for which it is given him in pledge. And for fuch oufter, though the estate be merely a chattel intereft, the owner fhall have the fame remedy as for an injury to a freehold; viz. by affise of novel diffeifin. But this depends upon the several statutes, which

a F. N. B. 178.

create

create these respective interests, and which exprefsly provide and allow this remedy in case of difpoffeffion. Upon which account it is that fir Edward Coke obferves, that these tenants are faid to hold their eftates ut liberum tenementum, until their debts be paid: because by the ftatutes they shall have an affise, as tenants of the freehold shall have; and in that refpect they have the fimilitude of a freehold a.

II. As for oufter, or amotion of poffeffion, 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 fituation of the wrongdoer: the writ of ejectione firmae; which lies against any one, the lessor, reverfioner, remainder-man, or any stranger, who is himself the wrongdoer and has committed the injury complained of: and the writ of quare ejecit infra terminum; which lies not against the wrongdoer or ejector himself, but his feoffee or other perfon claiming under him. These are mixed actions, fomewhat between real and perfonal; for therein are two things recovered, as well restitution of the term of years, as damages for the oufter or wrong.

1. A WRIT then of ejectione firmae, or action of trèspass in ejectment, lieth where lands or tenements are let for a term of years: and afterwards the leffor, reversioner, remainder-man, or any stranger, doth eject or ouft the leffee of his term. In this cafe he fhall have his writ of ejection to call the defendant to answer for entering on the lands fo demised to the plaintiff for a term that is not yet expired, and ejecting him, And by this writ the plaintiff fhall recover back his term, or the remainder of it, with damages.

b Stat. Weftm. 2. 13 Edw. I. c. 18. Stat. de mercatoribus, 27 Edw. III. c. 9. Stat. 23 Hen. VIII. c. 6. §. 9.

CI Inft. 43:

d See book II. ch. 10.

e F. N. B. 220.

f See appendix. No. II. §. L

SINCE

SINCE the difufe 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 fome degree of minuteness, it's history, the manner of it's process, and the principles whereon it is grounded.

WE have before feen, that the writ of covenant, for breach of the contract contained in the leafe for years, was antiently the only specific remedy for recovering against the leffor a term from which he had ejected his leffee, together with damages for the oufter, But if the leffee was ejected by a ftranger, claiming under a title fuperior to that of the leffor, or by a grantee of the reverfion, (who might at any time by a common recovery have deftroyed the term ') though the leffee might still maintain an action of covenant against the leffor, for non-performance of his contract or lease, yet he could not by any means recover the term itself. If the pufter was committed by a mere ftranger, without any title to the land, the leffor might indeed by a real action recover poffeffion of the freehold, but the leffee had no other remedy against the ejec tor but in damages, by a writ of ejectione firmae, for the trefpass committed in ejecting him from his farm. But afterwards, when the courts of equity began to oblige the ejector to make a specific reftitution of the land to the party immediately injured, the courts of law alfo adopted the fame method of doing complete juftice; and, in the profecution of a writ of ejectment, introduced a species of remedy not warranted by the original writ nor prayed by the declaration (which are

See pag. 157.

A F. N. B. 145.

i See book II. ch. 9.

k P. 6. Ric. II. Ejectione firmae n'eft que un action de trespass en fon nature, et le plaintiff ne recovera fon terme que eft a venir, nient plus que en trefpafs home recovera damages pur trespass nient fait, mes a fefer; mes il convient a fuer par action de covenant al comen law a recoverer fon

terme: quod tota curia conceffit. Et per' Belknap, la comen ley eft, lou home eft ouste de fon terme par eftranger, il avera ejectione firmae verfus cefty que luy oufte; et fil foit oufte par fon lesfer, briefe de covenant ; et fi par leffee cu grantee de reverfion briefe de covenant verfus fon leffor, et countera efpecial count, &c. (Fitz. abr. t. eject. firm. 2.) See Bract. 14. #r. 1. c. 36.

calculated