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feifin of the ancestor at any time during his life; whereas in a nuper obiit (which is a poffeffory remedy") he must be feifed at the time of his death. But, waiving thefe and other minute distinctions, let us now return to the general writ of right.

court-baron

THIS writ ought to be first brought in the of the lord, of whom the lands are holden; and then it is open or patent: but if he holds no court, or hath waived his right, remifit curiam fuam, it may be brought in the king's courts by writ of praecipe originally; and then it is a writ of right clofey, being directed to the fheriff and not the lord. Alfo, when one of the king's immediate tenants in capite is deforced, his writ of right is called a writ of praecipe in capite, (the improper ufe of which, as well as of the former praecipe quia dominus remifit curiam, so as to oust the lord of his jurisdiction, is restrained by magna cartaa,) and, being directed to the sheriff and originally returnable in the king's courts, is also a writ of right clofe. There is likewise a little writ of right clofe, fecundum confuetudinem manerii, which lies for the king's tenants in antient demefne, and others of a fimilar nature", to try the right of their lands and tenements in the court of the lord exclufively. But the writ of right patent itself may also at any time be removed into the county court, by writ of tolt, and from thence into the king's court, by writ of pone or recordari facias, at the fuggeftion of either party that there is a delay or defect of justice ".

In the progrefs of this action', the demandant must allege fome feifin of the lands and tenements in limfeif, or else in fome perfon under whom he claims, and then derive the right

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from the perfon so seised 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 fhewn 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 fhall 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 feifin could be alleged by the demandant, but from the time of Henry the first f; by the statute of Merton, 20 Hen. III. c. 8. from the time of Henry the fecond; by the statute of Westm. 1. 3 Edw. I. c. 39. from the time of Richard the first; and now, by ftatute 32 Hen. VIII. c. 2. feifin in a writ of right fhall be within fixty years. So that the poffeffion of lands in fee-fimple uninterruptedly, for three-score years, is at prefent a fufficient title against all the world; and cannot be impeached by any dormant claim whatsoever (1).

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 f Glanv. 1. 2. c. 3. Co. Litt. 114.

(1) This is far from being univerfally true; for an uninterrupted poffeffion for fixty years will not create a title, where the claimant or demandant had no right to enter within that time; as where an estate in tail, for life, or for years, continues above fixty years, fill the reverfioner may enter and recover the eftate; the poffeflion must be adverfe, and lord Coke fays, "it has been refolved, that although a man has been out of poffeffion of land for fixty years, yet if his entry is not tolled he may enter and bring any "action of his own poffeffion; and if his entry be congeable, and he "enter, he may have an action of his own poffeffion." 4 Co. 11.b.

reafon

reason 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 those 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, fo abfolutely antiquated as to be out of force, though the whole is [197] 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 other. wife. The forms are indeed preferved in the practice of common recoveries: but they are forms and nothing else; for which the very clerks that pafs them are feldom capable to affign the reafon. But the title of lands is now usually tried in actions of ejectment or trefpafs, of which in the following chapters.

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OF DISPOSSESSION, OR OUSTER,

OF CHATTELS REAL.

H

AVING in the preceding chapter confidered with fome attention the feveral fpecies of injury by difpoffeffion or oufter of the freehold, together with the regular and well-connected scheme of remedies by actions real, which are given to the fubject 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 ouster 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 railing 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 affife of novel diffeifin. But this depends upon the feveral ftatutes, which

a F. N. B. 178.

create

create these respective interests", and which exprefsly provide and allow this remedy in cafe 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 affife, as tenants of the freehold fhall have; and in that refpect they have the fimilitude of a freehold ".

II. As for oufter, or amotion of poffeffion, from an estate for years; this happens only by a like kind of diffeifin, 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 leffor, reverfioner, remainder-man, or any ftranger, 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 reftitution of the term of years, as damages for the oufter or wrong.

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

SINCE the difufe of real actions, this mixed proceeding is [200] become the common method of trying the title to lands or

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

c 1 Inft. 43.

d See book II. ch. 10.

e F. N. B. 220.

f See appendix. No II. § 1.

tenements.

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