hath the prefumptive right, yet there is a right of poffeffion, fuperior to his, refiding in him who brings the action. THESE remedies are either by a writ of entry, or an affife: which are actions merely poffefory; ferving only to regain that poffeffion, whereof the demandant (that is, he who fues for the land) or his ancestors have been unjustly deprived by the tenant or poffeffor of the freehold, or those under whom he claims. They decide nothing with respect to the right of property: only restoring the demandant to that ftate or fituation, in which he was (or by law ought to have been) before the difpoffeffion committed. But this without any prejudice to the right of ownership: for, if the difpoffeffor has any legal claim, he may afterwards exert it, notwithstanding a recovery against him in thefe poffeffory actions. Only the law will not fuffer him to be his own judge, and either take or maintain poffeffion of the lands, until he hath recovered them by legal means": rather prefuming the right to have accompanied the antient feifin, than to refide in one who had no fuch evidence in his favour. 1. THE first of thefe poffeffory remedies is by writ of entry; which is that which difproves the title of the tenant or poffeffor, by fhewing the unlawful means by which he entered or continues poffeflion. The writ is directed to the sheriff, requiring him to "command the tenant of the land that he "render (in Latin,praecipe quod reddat) to the demandant the "land in question, which he claims to be his right and in"heritance; and into which, as he faith, the faid tenant had "not entry but by (or after) a diffeifin, intrufion, or the like, "made to the faid demandant, within the time limited by law for fuch actions: or that upon refufal he do appear in "court on fuch a day, to fhew wherefore he hath not done "it"." This is the original procefs, the praecipe, upon which all the reft of the fuit is grounded: wherein it appears, that the tenant is required, either to deliver a Mirr. c. 4. 24. Finch. L. 261. See vol. II. append. No. V. § 1. feifin of the lands, or to fhew caufe why he will not. This caufe may be either a denial of the fact, of having entered by or under fuch means as are fuggefted, or a juftification of his entry by reafon of title in himself or in thofe under whom he makes claim: whereupon the poffeffion of the land is awarded to him who produces the cleareft right to poffefs it. In our antient books we find frequent mention of the degrees within which writs of entry are brought. If they be brought against the party himself that did the wrong, then they only charge the tenant himself with the injury; "non “ habuit ingressum nifi per intrufionem quam ipfe fecit:" But if the intruder, diffeifor, or the like, has made any alienation of the land to a third perfon, or it has defcended to his heir, that circumftance must be alleged in the writ, for the action muft always be brought against the tenant of the land; and the defect of his poffeffory title, whether arifing from his own wrong or that of thofe under whom he claims, muft be fet forth. One fuch alienation or defcent makes the first degree, which is called the per, because then the form of a writ of entry is this; that the tenant had not entry but by the original wrongdoer, who alienated the land, or from whom it defcended, to him: "non habuit ingreffum "nifi per Guilielmum, qui fe in illud intrufit, et illud tenenti dimifit." A fecond alienation or defcent makes another degree called the per and cui; because the form of a writ of entry, in that cafe, is, that the tenant had not entry, but by or under a prior alienee, to whom the intruder demifed it; "non habuit ingreffum, nifi per Ricardum, cui Guilielmus « illud dimifit, qui fe in illud intrufit & " Thefe degrees thus ftate the original wrong, and the title of the tenant who claims under fuch wrong. If more than two degrees (that is, two alienations or defcents) were paft, there lay no writ of entry at the common law. For, as it was provided, for the 9 Finch. L. 262. Booth indeed (of real actions. 172.) makes the first degree to confift in the original wrong done, the fecond in the per, and the third in the per and cui. r' Booth. 181. But the difference is • Finch. L. 263, F. N. B. 203, 204. quietnefs quietness of men's inheritances, that no one, even though he had the true right of poffeffion, fhould enter upon him who had the apparent right by defcent or otherwise, but he was driven to his writ of entry to gain poffeffion; so, after more than two defcents or two conveyances were paffed, the demandant, even though he had the right both of poffeffion and property, was not allowed this poffeffory action; but was driven to his writ of right, a long and final remedy, to punish his neglect in not fooner putting in his claim, while the degrees fubfifted, and for the ending of fuits, and quieting of all controverfies'. But by the ftatute of Marlbridge, 52 Hen. III. c. 30. it was provided, that when the number of alienations or defcents exceeded the ufual degrees, a new writ fhould be allowed without any mention of degrees at all. And accordingly a new writ has been framed, called a writ of entry in the poft, which only alleges the injury of the wrongdoer, without deducing all the intermediate title from him to the tenant: ftating it in this manner; that the tenant had not entry unless after, or fubfequent to, the ouster or injury done by the original difpoffeflor; "non habuit "ingreffum nifi poft intrufionem quam Guilielmus in illud fecit," and rightly concluding, that if the original title was wrongful, all claims derived from thence must participate of the fame wrong. Upon the latter of thefe writs it is (the writ of entry fur diffifin in the post) that the form of our common recoveries of landed eftates is ufually grounded; which, we may remember, were observed in the preceding volume" to be fictitious actions, brought against the tenant of the freehold (ufually called the tenant to the praecipe, or writ of entry) in which by collufion the demandant recovers the land. THIS remedial inftrument, of writ of entry, is applicable to all the cafes of oufter before-mentioned, except that of difcontinuance by tenant in tail, and fome peculiar fpecies of deforcements. Such is that of deforcement of dower, by not alligning any dower to the widow within the time limited by t 2 Inft. 153. See book II. append. N°. V. u Book II. ch. 21. law; law; for which fhe has her remedy by writ of dowver unde nihil habet. But if he be deforced of part only of her dower, she cannot then say that nihil habet; and therefore the may have recourfe 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 fame nature as the grand writ of right, whereof we shall prefently speak, is with regard to claims in fee-fimple *. On the other hand, if the heir (being within age) or his guardian, affign her more than fhe ought to have, they may be remedied by a writ of admeafurement of dower. But in general the writ of entry is the univerfal remedy to recover poffession, when wrongfully withheld from the owner. It were therefore endless to recount all the feveral divifions of writs of entry, which the different circumftances of the refpective demandants may require, and which are furnished by the laws of England: being plainly and clearly chalked out in that most antient and highly venerable collection of legal forms, the registrum omnium brevium, or regifter of fuch writs as are fuable out of the king's courts, upon which Fitzherbert's natura brevium is a comment; and in which every man who w F. N. B. 147. * Itid. 16. y F. N. B. 148. Finch. L. 314. Stat. Weftm. 2. 13 Ed. 1. 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 fur diffeifin, and of intrufon: (F. N. B. 191.203.) which are brought to remedy eit er of those fpecies of oufter. 2. 1 he whits of dum fuit infra actatem, and dum fut non compos mentis : (Ibid. 192. 202.) which lie for a perfon of fail age, or one who hath recovered his understanding. after having (when under age or infane) aliened his lands; or for the heirs of fuch alienor. 3. The writs of cui in wita, and cui ante divertium : (Ibid. 193. 204.) for a woman, when a widow or divorced, whofe Lufband during the coverture (cui in vita fua, vel cui ante diBort.um, ipfa contradicere non potuit ; bath aliened her estate. 4. The writ ad com- not. is injured will be fure to find a method of relief, exactly adapted to his own cafe, defcribed in the compafs of a few lines, and yet without the omiffion of any material circumstance. So that the wife and equitable provifion of the ftatute Weftm. 2. 13 Edw. I. c. 24. for framing new writs when wanted, is almoft rendered ufelefs by the very great perfection of the antient forms. And indeed I know not whether it is a greater credit to our laws, to have such a provifion contained in them, or not to have occafion, or at leaft very rarely, to use it. IN the times of our Saxon ancestors, the right of poffeffion feems only to have been recoverable by writ of entry 2; which was then ufually brought in the county court. it is to be obferved, that the proceedings in these actions were not then fo tedious, when the courts were held, and procefs iffued from and was returnable therein at the end of every three weeks, as they became after the conqueft, when all caufes were drawn into the king's courts, and procefs iffued only from term to term; which was found exceeding dilatory, being at least four times as flow as the other. And hence a new remedy was invented in many cafes, to do justice to the people, and to determine the poffeffion in the proper counties, and yet by the king's judges. This was the remedy by affife, which is called by ftatute Weftm. 2. 13 Edw. I. c. 24. feflinum remedium, in comparifon with that by a writ of entry; it not admitting of many dilatory pleas and proceedings, to which other real actions are fubject b. 2. THE writ of affe is faid to have been invented by Glanvil, chief juftice to Henry the fecond ; and, if fo, it feems to owe it's introduction to the parliament held at Northampton, in the twenty-fecond year of that prince's reign; when juftices in eyre were appointed to go round the kingdom in order to take thefe affifes: and the affifes themfelves (particularly thofe of mort d'ancestor and novel disseifin) a Gilb. Ten. 42. b Booth. 262. c. 2. §25. c Mirror. c. 2. were |