As a writ of entry. were clearly pointed out and described d. is a real action, which disproves the title of the tenant by fhewing the unlawful commencement of his poffeffion; fo an affife is a real action, which proves the title of the demandant merely by fhewing his, or his ancestor's, poffeffion: and thefe two remedies are in all other refpects fo totally alike, that a judgment or recovery in one is a bar against the other; fo that when a man's poffeffion is once established by either of thefe poffeffory actions, it can never be difturbed by the fame antagonist in any other of them. The word, afife, is derived by fir Edward Coke from the Latin affideo to fit together; and it fignifies, originally, the jury who try the caufe, and fit together for that purpofe. By a figure it is now made to fignify the court or jurifdiction, which fummons this jury together by a commiffion of affife, or ad affifas capiendas; and hence the judicial affemblies held by the king's commiffion in every county, as well to take thefe writs of aflife, as to try causes at nifi prius, are termed in common fpeech the affifes. By another fomewhat fimilar figure, the name of aflife is alfo applied to this action, for recovering poffeffion of lands: for the reason, faith Littleton, why fuch writs at the beginning were called affifes, was, for that in thefe writs the fheriff is ordered to fummon a jury, or aflife; which is not expreffed in any other original writ ". THIS remedy, by writ of affife, is only applicable to two fpecies of injury by oufter, viz. abatement, and a recent or novel diffeifin. If the abatement happened upon the death of the demandant's father or mother, brother or fifter, uncle or aunt, nephew or niece, the remedy is by an affife of mort d'anceffor, or the death of one's anceftor. This writ directs d 9. Si dominus feodi negat bacredibus defunéti faifinam ejufdem feodi, justitiarii domini regis faciant inde fieri recogniionem per x ilegales bomines, qualem faifinam defunctus inde babuit, die qua fuit vivus et mortuus; et, fi ut recognitum fuerit, ita haeredibus ejus reftituant. § 10. Juftitiarii domini regis faciant fieri recognutionem de difaifinis fallis fuper aflifam, a tempore quo dominus rex venit in Angliam proxime poft pacem faltam inter ipfum et regem filium fuum. (Spelm. Cod. 330.) e Finch. L. 284. h Co. Litt. 159. the the sheriff to fummon a jury or aflife, who fhall view the land in queftion, and recognize whether fuch ancestor were feifed thereof on the day of his death, and whether the demandant be the next heiri: foon after which, the judges come down by the king's commiffion to take the recognition of affise: when, if these points are found in the affirmative, the law immediately transfers the poffeffion from the tenant to the demandant. If the abatement happened on the death of one's grandfather or grandmother, then an affise of mort d'ancestor no longer lies, but a writ of ayle, or de avo: if on the death of the great grandfather or great grandmother, then a writ of befayle, or de proavo: but if it amounts one degree higher, to the trefayle, or grandfather's grandfather, or if the abatement happened upon the death of any collateral relation, other than thofe before-mentioned, the writ is called a writ of cofinage, or de confanguineo. And the fame points shall be inquired of in all these actions ancestrel, as in an assise of mort d'anceflor: they being of the very fame nature': though they differ in this point of form, that these ancestrel writs (like all other writs of praecipe) exprefsly affert a title in the demandant, (viz. the feifin of the ancestor at his death, and his own right of inheritance,) the affife afferts nothing directly, but only prays an inquiry whether thofe points be fo". There is also another ancestrel writ, denominated a nuper obiit, to establish an equal divifion of the land in question, where on the death of an ancestor, who has feveral heirs, one enters and holds the others out of poffeffion". But a man is not allowed to have any of these actions ancestrel for an abatement confequent on the death of any collateral relation, beyond the fourth degree; though in the lineal afcent he may proceed ad infinitum P. For there muft be fome boundary; elfe the privilege would be univerfal, which is abfurd: and therefore the law pays no regard to the poffeffion of a collateral ancestor, who was no nearer than the fifth degree. iF. N. B. 195. Finch. L. 290. k Finch. L. 266, 267. 1 Stat. Weftm. 2. 13 Edw. I. c. 20. 2 Inft. 399. n F. N. B. 197. Finch. L. 293. o Hale on F. N. B. 221. p Fitzh. Abr. tit, cofinage. 15. It was always held to be law, that where lands were devisable in a man's laft will by the custom of the place, there an affife of mort d'anceftor did not lie. For, where lands. were fo devifable, the right of poffeffion could never be determined by a process, which inquired only of these two points, the feifin of the ancestor, and the heirship of the demandant. And hence it may be reasonable to conclude, that when the ftatute of wills, 32 Hen. VIII. c. 1. made all focage land devisable, an affife of mort d'anceftor no longer could be brought of lands held in focage'; and that now, fince the ftatute 12 Car. II. c. 24. (which converts all tenures, a few only excepted, into free and common focage) no affife 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 affife of novel (or recent) diffeifin is an action of the fame nature with the affife of mort d'anceflor before-mentioned, in that herein the demandant's poffeffion must be fhewn. But it differs confiderably in other points: particularly in that it recites a complaint by the demandant of the diffeifin committed, in terms of direct averment; whereupon the fheriff is commanded to refeise the land and all the chattels thereon, and keep the fame in his cuftody till the arrival of the juftices of aflife (which in fact hath been usually omitted'); and in the mean time to fummon a jury to view the premises, and make recognition of the affife before the juftices. At which time the tenant may plead either the general iffues nul tort, nul diffeifin, or any fpecial plea. And if, upon the general iffue, the recognitors find an actual seifin in the demandant, and his fubfequent diffeifin by the prefent tenant; he fhall have judgment to recover his feifin, and damages for the injury fuftained: being the only cafe in which damages were recoverable in any poffeffory action at the common law "; the tenant being in all other cafes allowed to retain the intermediate profits of the land, to enable him to perform the feodal services. But cofts and damages were annexed to many other poffeffory actions by the ftatutes of Marlberge, 52 Hen. III. c. 16. and of Glocester, 6 Edw. I. c. I. And to prevent frequent and vexatious diffeifins, it is enacted by the statute of Merton, 20 Hen. III. c. 3. that if a perfon diffeifed recover feifin of the land again by assise of novel disfeifin, and be again disseised of the fame tenements by the fame diffeisor, he shall have a writ of re-diffeifin; and, if he recover therein, the re-diffeifor fhall be imprisoned; and, by the ftatute of Marlberge, 52 Hen. III. c. 8. fhall alfo pay a fine to the king: to which the statute Westm. 2. 13 Edw. I. c. 26. Irath fuperadded double damages to the party aggrieved. In like manner, by the fame ftatute of Merton, when any lands or tenements are recovered by allife of mort d'ancestor, or other jury, or any judgment of the court, if the party be afterwards diffeifed by the fame perfon against whom judgement was obtained, he fhall have a writ of poft-diffeifin against him; which fubjects the post-diffeifor to the fame penalties as a re-diffeifor. The reafon of all which, as given by fir Edward Coke, is becaufe fuch proceeding is a contempt of the king's courts, and in defpite of the law; or, as Bracton more fully expreffes it, “ talis qui ita convictus fuerit, du"pliciter delinquit contra regem: quia facit disseisinam et ro"beriam contra pacem fuam; et etiam aufu temerario irrita 3 facit ea, quae in curia domini regis rite acta funt: et propter duplex delictum merito fuftinere debet poenam duplicatam." In all these poffessory actions there is a time of limitation fettled, beyond which no man shall avail himself of the pòffeffion of himself or his ancestors, or take advantage of the wrongful poffeffion of his adversary. For, if he be negligent for a long and unreasonable time, the law refufes afterwards to lend him any affiftance, to recover the poffeffion merely; both to punish his neglect, (nam leges vigilantibus, non dormientibus, fubveniunt,) and also because it is prefumed that the fuppofed wrongdoer has in fuch a length of time procured a legal title, otherwife he would fooner have been fued. This x 2. 4. c. 43. w 2 Inft. 83, 84. time of limitation by the ftatute of Merton, 20 Hen. III. c. 8. and Weftm. 1. 3 Edw. I. c. 39. was fucceffively dated from particular aeras, viz. from the return of king John from Ireland, and from the coronation, &c. of king Henry the third. But this date of limitation continued fo 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 prefent ftatute of limitations was made. This, instead of limiting actions from the date of a particular event, as before, which in procefs of years grew abfurd, took another and more direct courfe, which might endure for ever; by limiting a certain period, as fifty years for lands, and the like period for customary and prescriptive rents, fuits, and fervices, (for there is no time of limitation upon rents created by deed, or reserved on a particular estatea,) and enacting that no perfon fhould bring any poffeffory action, to recover poffeffion thereof merely upon the feifin, or difpoffeffion, of his ancestors, beyond such certain period. But this does not extend to fervices, which by common poflibility may not happen to become due more than once in the lord's or tenant's life; as fealty, and the like. And all writs, grounded upon the poffeflion of the demandant himself, are directed to be fued out within thirty years after the diffeifia complained of; for if it be an older date, it can with no propriety be called a fresh, recent, or novel diffeifin; which name fir Edward Coke informs us was originally given to this proceeding, because the diffeifin must have been fince the last eyre or circuit of the juftices, which happened once in seven years, otherwise the action was gone. And we may observed, that the limitation, prescribed by Henry the second at the first inftitution of the affize of novel diffeifin, was from his own return into England after the peace made between him and the young king his fon; which was but the year before. Y 32 Hen. VIII. c. 2. z So Berthelet's original edition of the ftatute, A. D. 1540: and Cay's, Pickering's and Ruffhead's editions, examined with the record. Raftell's and other intermediate editions, which fir Edward Coke (2 Inf. 95.) and other fubfequent writers have followed, make P 2 b Co. Litt. 115. 1 Inft. 153. Booth, 210. d See pag. 184. WHAT |