WHAT has been here obferved may throw fome light on the doctrine of remitter, which we fpoke of in the second chapter of this book; and which, we may remember, was, where one who hath right to lands, but is out of poffeffion, hath afterwards the freehold caft upon him by fome fubfequent defective title, and enters by virtue of that title. In this cafe the law remits him to his antient and more certain right, and by an equitable fiction supposes him to have gained poffeffion in confequence, and by virtue thereof: and this because he cannot poffibly obtain judgment at law to be reftored to his prior right, since he is himself the tenant of the land, and therefore hath nobody against whom to bring his action. This determination of the law might feem fuperfluous to an hafty obferver; who perhaps would imagine, that fince the tenant hath now both the right and also the possession, it little fignifies by what means fuch poffeffion shall be faid to be gained. But the wisdom of our antient law determined nothing in vain. As the tenant's poffeffion was gained by a defective title, it was liable to be overturned by fhewing that defect in a writ of entry; and then he must have been driven to his writ of right, to recover his just inheritance: which would have been doubly hard, because, during the time he was himself tenant, he could not establish his prior title by any poffeffory action. The law therefore remits him to his prior title, or puts him in the fame condition as if he had recovered the land by writ of entry. Without the remitter, he would have had jus, et feifinam, feparate; a good right, but a bad poffeffion: now, by the remitter, he hath the most perfect of all titles, juris et seifinae conjunctionem. III. By these several poffeffory remedies the right of poffeffion may be reftored to him, that is unjustly deprived thereof. But the right of poffeffion (though it carries with it a ftrong prefumption) is not always conclufive evidence of the right of property, which may still subsist in another man. For, as one man may have the polion, and another the right of poffeffion, which is recovered by thefe poffeflory actions; fo one one man may have the right of polion, and fo not be liable to eviction by any poffeffory action, and another may have the right of property, which cannot be otherwife afferted than by the great and final remedy of a writ of right, or fuch correspondent writs as are in the nature of a writ of right. THIS happens principally in four cafes: 1. Upon discontinuance by the alienation of tenant in tail: whereby he, who had the right of poffeffion, hath transferred it to the alienee; and therefore his iffue, or thofe in remainder or reverfion, fhall not be allowed to recover by virtue of that poffeffion, which the tenant hath fo voluntarily transferred. 2, 3. In cafe of judgment given against either party, whether by his own default, or upon trial of the merits, in any poffeffory action: for fuch judgment, if obtained by him who hath not the true ownership, is held to be a fpecies of deforcement; which however binds the right of poffeffion, and fuffers it not to be ever again difputed, unless the right of property be allo proved. 4. In cafe the demandant, who claims the right, is barred from these poffeffory actions by length of time and the statute of limitations before-mentioned: for an undifturbed poffeffion, for fifty years, ought not to be devested by any thing, but a very clear proof of the absolute right of propriety. In these four cafes the law applies the remedial inftrument of either the writ of right itself, or fuch other writs, as are faid to be of the fame nature. 1. AND first, upon an alienation by tenant in tail, whereby the estate-tail is discontinued, and the remainder or reverfion is by failure of the particular eftate difplaced, and turned into a mere right, the remedy is by action of formedon, (fecundum formam doni,) which is in the nature of a writ of right, and is the highest action that tenant in tail can hayef. For he cannot have an absolute writ of right, which is confined only to fuch as claim in fee-fimple: and for that reason this writ of formeden was granted him by the statute de donis or f Co. Litt. 316, e Finch. L. 267. Weftm. 2. 13 Edw. I. c. 1. which is therefore emphatically called his writ of right. This writ is diftinguished into three fpecies; a formedon in the defcender, in the remainder, and in the reverter. A writ of formedon in the defcender lieth where a gift in tail is made, and the tenant in tail alienes the lands entailed, or is diffeifed of them, and dies; in this cafe the heir in tail fhall have this writ of formedon in the defcender, to recover these lands fo given in tail against him who is then the actual tenant of the freehold. In which action the demandant is bound to ftate the manner and form of the gift in tail, and to prove himself heir fecundum formam doni. A formedon in the remainder lieth, where a man giveth lands to another for life or in tail, with remainder to a third perfon in tail or in fee; and he who hath the particular estate dieth, without iffue inheritable, and a stranger intrudes upon him in remainder, and keeps him out of poffeffion. In this cafe the remainder-man shall have his writ of formedon in the remainder, wherein the whole form of the gift is ftated, and the happening of the event upon which the remainder depended. This writ is not given in exprefs words by the ftatute de donis; but is founded upon the equity of the ftatute, and upon this maxim in law, that if any one hath a right to the land, he ought alfo to have an action to recover it. A formedon in the reverter lieth, where there is a gift in tail, and afterwards by the death of the donee or his heirs without iffue of his body the reversion falls in upon the donor, his heirs, or affigns: in fuch cafe the reverfioner fhall have this writ to recover the lands, wherein he shall suggest the gift, his own title to the reverfion minutely derived from the donor, and the failure of iffue upon which his reverfion takes place *. This lay at common law, before the ftatute de donis, if the donee aliened before he had performed the condition of the gift, by having issue, and afterwards died without any. The time of limitation in a formedon by ftatute 21 Jac. I. c. 16. is twenty years; within g F. N. B. 255. Ibid. 211, 214. i Ibid. 217. 8 Rep. 88. k Ibid. 219. which space of time after his title accrues, the demandant must bring his action, or elfe is for ever barred. 2. In the second cafe; if the owners of a particular eftate, as for life, in dower, by the curtefy, or in fee-tail, are barred of the right of poffeffion by a recovery had against them, through their default or non-appearance in a poffeffory action, they were abfolutely without any remedy at the common law: as a writ of right does not lie for any but fuch as claim to be tenants of the fee-fimple. Therefore the ftatute Weftm. 2. 13 Edw. I. c. 4. gives a new writ for fuch persons, after their lands have been fo recovered against them by default, called a quod ei deforceat; which, though not strictly a writ of right, fo far partakes of the nature of one, as that it will reftore the right to him, who has been thus unwarily deforced by his own default ". But in cafe the recovery were not had by his own default, but upon defence in the inferior poffeffory action, this ftill remains final with regard to thefe particular eftates, as at the common law and hence it is, that a common recovery (on a writ of entry in the post ) had, not by default of the tenant himself, but (after his defence made and voucher of a third person to warranty) by default of such vouchee, is now the ufual bar to cut off an estatetail". 3, 4. THIRDLY, in cafe the right of poffeffion be barred by a recovery upon the merits in a poffeffory action, or laftly, by the statute of limitations, a claimant in fee-fimple may have a mere qurit of right; which is in it's nature the highest writ in the law, and lieth only of an estate in fee-fimple, and not for him who hath a lefs eftate. This writ lies concurrently with all other real actions, in which an eftate of feefimple may be recovered; and it alfo lies after them, being as it were an appeal to the mere right, when judgment hath been had as to the poffeffion in an inferior poffeffory ac m F. N. B. 155. See book iI. ch. 21 F. N. B. 1. P 4 tion. tion P. But though a writ of right may be brought, where the demandant is entitled to the poffeffion, yet it rarely is advisable to be brought in such cases; as a more expeditious and eafy remedy is had, without meddling with the property, by proving the demandant's own, or his ancestor's, poffef fion, and their illegal oufter, in one of the poffeffory actions. But, in case the right of poffeffion be loft by length of time, or by judgment against the true owner in one of these inferior fuits, there is no other choice: this is then the only remedy that can be had; and it is of fo forcible a nature, that it overcomes all obftacles, and clears all objections that may have arifen to cloud and obfcure the title. And, after iffue once joined in a writ of right, the judgment is abfolutely final; fo that a recovery had in this action may be pleaded in bar of any other claim or demand 9. THE pure, proper, or mere writ of right lies only, we have faid, to recover lands in fee-fimple, unjustly withheld from the true proprietor. But there are alfo fome other writs which are faid to be in the nature of a writ of right, because their process and proceedings do mostly (though not entirely) agree with the writ of right: but in fome of them the fee. fimple is not demanded; and in others not land, but fome incorporeal hereditament. Some of these have been already mentioned, as the writ of right of dower, of formedon, &c.: and the others will hereafter be taken notice of, under their proper divifions. Nor is the mere writ of right alone, or always, applicable to every cafe of a claim of lands in feefimple: for if the lord's tenant in fee-fimple dies without heir, whereby an cfcheat accrues, the lord fhall have a writ of ef cheat, which is in the nature of a writ of right. `And if one of two or more coparceners deforces the other, by ufurping the fole poffeffion, the party aggrieved fhall have a writ of right, de rationabili parte: which may be grounded on the |