part of it in the fame county, declaring it to be in the name of the whole " but if it lies in different counties he must make different entries; for the notoriety of fuch entry or claim to the pares or freeholders of Weftmorland, is not any notoriety to the pares or freeholders of Suflex. Also if there be two diffeisors, the party diffeifed must make his entry on both; or if one diffeifor has conveyed the lands with livery to two distinct feoffees, entry must be made on both": for as their feifin is diftinct, fo alfo must be the act which devests that feifin. If the claimant be deterred from entering by menaces or bodily fear, he may make claim, as near to the estate as he can, with the like forms and folemnities: which claim is in force for only a year and a day. And this claim, if it be repeated once in the space of every year and day, (which is called continual claim,) has the fame effect with, and in all respects amounts to, a legal entry. Such an entry gives a man feifin, or puts into immediate poffeffion him that hath right of entry on the estate, and thereby makes him complete owner, and capable of conveying it from himfelf by either defcent or purchase, THIS remedy by entry takes place in three only of the five fpecies of oufter, viz. abatement, intrufion, and diffeifin2 : for, as in these the original entry of the wrongdoer was unlawful, they may therefore be remedied by the mere entry of him who hath right. But, upon a difcontinuance or deforcement, the owner of the estate cannot enter, but is driven to his action for herein the original entry being lawful, and thereby an apparent right of poffeffion being gained, the law will not suffer that right to be overthrown by the mere act or entry of the claimant. Yet a man may enter on his tenant by fufferance: for fuch tenant hath no freehold, but only a bare poffeffion; which may be defeated, like a tenancy at will, by the mere entry of the owner. But if the owner thinks it more expedient to fuppofe or admit fuch tenant to u Litt. § 417. w Co. Litt. 252. x Litt. § 422. y Ibid. § 419. 423, 03 z Co. Litt. 15. a Ibid. 237, 238. b See book II. pag. 150. have BOOK III. have gained a tortious freehold, he is then remediable by writ of entry, ad terminum qui praeteriit. On the other hand, in cafe of abatement, intrufion, or diffeifin, where entries are generally lawful, this right of entry may be tolled, that is, taken away, by defcent. Defcents, which take away entries, are when any one, feifed by any means whatsoever of the inheritance of a corporeal hereditament, dies, whereby the fame defcends to his heir in this cafe, however fecble the right of the ancestor might be, the entry of any other perfon who claims title to the freehold is taken away; and he cannot recover poffeflion against the heir by this fummary method, but is driven to his action to gain a legal feifin of the eftate. And this, firft, because the heir comes to the estate by act of law, and not by his own act; the law therefore protects his title, and will not suffer his poffeffion to be devefted, till the claimant hath proved a better right. Secondly, because the heir may not fuddenly know the true ftate of his title; and therefore the law, which is ever indulgent to heirs, takes away the entry of fuch claimant as neglected to enter on the anceftor, who was well able to defend his title; and leaves the claimant only the remedy of an action against the heir. Thirdly, this was admirably adapted to the military fpirit of the feodal tenures, and tended to make the feudatory bold in war; fince his children could > not, by any mere entry of another, be difpoffeffed of the lands whereof he died feifed. And, laftly, it is agreeable to the dictates of reafon and the general principles of law. FOR, in every complete title to lands, there are two things neceffary; the poffeffion or feifin, and the right or property therein 3: or, as it is expreffed in Fleta, juris et feifinae conjunctio". Now, if the poffeffion be fevered from the property, if A has the jus proprictatis, and B by fome unlawful means has gained poffeffion of the lands, this is an injury to A; for which the law gives a remedy, by putting d Litt. § 385-413. e Co. Litt. 237. f See book II. ch. 13. g Mirror. c. 2. §. 27. him in poffeffion, but does it by different means according to the circumstances of the cafe. Thus, as B, who was himfelf the wrongdoer, and hath obtained the poffeffion by either fraud or force, hath only a bare or naked poffeffion, without any shadow of right; A therefore, who hath both the right of property and the right of poffeffion, may put an end to his title at once, by the fummary method of entry. But, if B the wrongdoer dies feised of the lands, then B's heir advances one step farther towards a good title: he hath not only a bare poffeffion, but also an apparent jus poffeffionis, or right of poffeffion. For the law prefumes, that the poffefsion, which is tranfmitted from the ancestor to the heir, is a rightful pofsession, until the contrary be fhewn: and therefore the mere entry of A is not allowed to evict the heir of B; but A is: driven to his action at law to remove the poffeffion of the: heir, though his entry alone would have difpoffeffed the an ceftor. k So that in general it appears, that no man can recover poffeffion by mere entry on lands, which another hath by defcent. Yet this rule hath fome exceptions, wherein those reasons ceafe, upon which the general doctrine is grounded; especially if the claimant were under any legal difabilities, during the life of the ancestor, either of infancy, coverture, imprifonment, infanity, or being out of the realm: in all which cafes there is no neglect or laches in the claimant, and therefore no descent shall bar, or take away his entry *. And this. title of taking away entries by defcent, is ftill farther marrowed by the statute 32 Hen. VIII. c. 33. which enacts, that if any person diffeifes or turns another out of poffeflion, no defcent to the heir of the diffeifor fhall take away the entry of him that has right to the land, unless the diffeifor had peaceable poffeffion five years next after the diffeifin. But the statute extendeth not to any feoffee or donee of the disseisor, mediate or immediate: becaufe fuch a one by the genuine feodal conftitutions always came into the tenure folemnly i See the particular cafes mentioned by Littleton, b. 3. ch. 6. the principles of which are well explained in Gilbert's law of tenures. 0 4 k Co. Litt. 245. 1 Ibid. 256. and and with the lord's concurrence, by actual delivery of seifin, that is, open and public inveftiture. On the other hand, it is enacted by the ftatute of limitations, 21 Jac. I. c. 16. that no entry shall be made by any a man upon lands, unless within twenty years after his right fhall accrue. And by ftatute 4 & 5 Ann. c. 16. no entry fhall be of force to fatisfy the said statute of limitations, or to avoid a fine levied of lands, unless an action be thereupon commenced within one year after, and profecuted with effect. UPON an oufter, by the difcontinuance of tenant in tail, we have faid that no remedy by mere entry is allowed; but that, when tenant in tail alienes the lands entailed, this takes away the entry of the iffue in tail, and drives him to his action at law to recover the poffeffion m. For, as in the former cafes the law will not fuppofe, without proof, that the anceftor of him in poffeffion acquired the estate by wrong; and therefore, after five years peaceable poffeffion, and a descent caft, will not suffer the poffeffion of the heir to be disturbed by mere entry without action; fo here, the law will not fuppofe the difcontinuor, to have aliened the eftate without power fo to do, and therefore leaves the heir in tail to his action at law, and permits not his entry to be lawful. Besides, the alienee, who came into poffeffion by a lawful conveyance, which was at least good for the life of the alienor, hath not only a bare poffeffion, but also an apparent right of poffeflion; which is not allowed to be devested by the mere entry of the claimant, but continues in force till a better right be fhewn, and recognized by a legal determination. And something alfo perhaps, in framing this rule of law, may be allowed to the inclination of the courts of juftice, to go as far as they could in making eftates-tail alienable, by declaring fuch alienations to be voidable only and not abfolutely void. IN cafe of deforcements alfo, where the deforciant had originally a lawful poffeffion of the land, but now detains it wrongfully, he fill continues to have the prefumptive prima m Co. Litt. 325. facie evidence of right; that is, poffeffion lawfully gained. Which poffeffion shall not be overturned by the mere entry of another; but only by the demandant's fhewing a better right in a course of law, THIS remedy by entry must be pursued, according to statute 5 Ric. II. ft. 1. c. 8. in a peaceable and easy manner; and not with force or strong hand. For, if one turns or keeps another out of poffeffion forcibly, this is an injury of both a civil and a criminal nature. The civil is remedied by immediate reftitution; which puts the antient poffeffor in ftatu quo: the criminal injury, or public wrong, by breach of the king's peace, is punished by fine to the king. For by the statute 8 Hen. VI. c. 9. upon complaint made to any juftice of the peace, of a forcible entry, with ftrong hand, on lands or tenements; or a forcible detainer after a peaceable entry; he shall try the truth of the complaint by jury, and, upon force found, fhall reftore the poffeffion to the party fo put out and in such case, or if any alienation be made to defraud the poffeffor of his right, (which is likewife declared to be abfolutely void,) the offender fhall forfeit, for the force found, treble damages to the party grieved, and making fine and ranfom to the king. But this does not extend to such as endeavour to keep poffeffion manu forti, after three years peaceable enjoyment of either themselves, their ancestors, or those under whom they claim; by a fubfequent clause of the fame ftatute, enforced by ftatute 31 Eliz. c. 11. II. THUS far of remedies, where the tenant or occupier of the land hath gained only a mere poffeffion, and no apparent fhadow of right. Next follow another class, which are in ufe where the title of the tenant or occupier is advanced one ftep nearer to perfection; so that he hath in him not only a bare poffeffion, which may be deftroyed by a bare entry, but also an apparent right of poffeffion, which cannot be removed. but by orderly courfe of law; in the procefs of which it must be fhewn that though he hath at prefent poffeffion and therefore |