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seisn of the ancestor at any time during his life; whereas in a nuper obiit (which is a poffeffory remedy“) he must be seised at the time of his death. But, waiving these and other minute distinctions, let us now return to the general writ of right.
This writ ought to be first brought in the wcourt-baron of the lord, of whom the lands are holden ; and then it is open or patent: but if he holds no court, or häth waived his right, remisit curiam fuam, it may be brought in the king's courts by writ of praecipe originally*; and then it is a writ of right close”, being directed to the theriff' and not the lord ? Also, 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 use of which, as well as of the former praecipe quia dominus remisit curiain, so as to oust the lord of his jurisdiction, is restrained by magna carta”,) and, being directed to the theriff and originally returnable in the king's courts, is also a writ of right closet. There is likewise a little writ of right close, fecundum confuetudinem manerii, which lies for the king's tenants in antient demesne, and others of a similar nature", to try the right of their lands and tenements in the court of the lord exclusivelye. 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 fone 5 or recordari facias, at the suggestion of either party that there is a delay or defect of justice h.
In the progress of this action', the demandant must allege some feisin of the lands and tenements in limfeil, or else in some person under whom he claims, and then derive the right
See page 186. w Append. N° 1. & 1. X F. N. B. 2. Finch. L 313, y Booth. 91. 2 Append. No I. § 4. a c. 24. b F. N. B. 5. c See book Il. ch. 6. & Kitchen, cici evpyhold.
• Bructon. 1. a. c. U. 1. 4. tr. I. c. 9. &ir. 3. 6. 13. $9. Old Tenur. 1. tenir en focage. Old N. B. t. garda. Gi. briefe de réto rlaus. F. N. B. 11.
f Append. N? 1. $ 2.
PRIVATE Eook III. from the person 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 shewn, it then puts the demandant upon the proof of his title: in which if he fails, or if the tenant hath shewn a better, the demandant and his heirs are perpetually barred of their claim ; but if he can make it appear that his right is superior to the tenant's, he shall recover the land against the tenant and his heirs for ever. But even this writ of right, however superior to any other, cannot be sued out at any distance of time. For by the antient law no seisin 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 second ; by the statute of Westm. 1. 3 Edw. I. c. 39. from the time of Richard the first; and now, by statute 32 Hen. VIII. c. 2. seisin in a writ of right shall be within sixty years. So that the possession of lands in fee-limple uninterruptedly, for three-score years, is at present a sufficient 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 ouster and dispoffeßion of the freehold, with the remedies applicable to each. In considering which I have been unavoidably led to touch upon much obsolete and abstruse learning, as it lies intermixed with, and alone can explain the
Glanv. l. 2. c. 3. Co. Litt. 114.
(1) This is far from being universally 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, full she reverfioner may enter and recover the estate; the poffefion must be adverse, and lord Coke fays, “ it has been re“solved, that although a man has been out of pofletion of land for « fixty years, yet if his entry is not tolled he may enter and bring any “ action of his own poffussion; and if his entry be congeable, and he enter, he may have an action of his own possession." 4.60.11.b.
reason of, those parts of the law which are now more generally in use. For, without contemplating the whole fabric together, it is impossible to form any clear idea of the meaning and connection of those disjointed parts, which still form a conliderable branch of the modern law; such as the doctrine of entries and remitter, the levying of fines, and the suffering of common recoveries. Neither indeed is any considerable part of that, which I have selected in this chapter from among the venerable monuments of our ancestors, fo absolụtely antiquated as to be out of force, though the whole is [ 197 ) certainly out of use: there being but a very few instances for more than a century past of prosecuting any real action for land by writ of entry, alyje, formedon, writ of right, or other. wise. The forms are indeed preserved in the practice of common recoveries: but they are forms and nothing else; for which the very clerks that pass them are seldom capable to assign the reason. But the title of lands is now usually tried in actions of ejectment or trespass; of which in the following chapters.
CHAPTER THE ELEVENTH.
OF DISPOSSESSION, OR OUSTER,
OF CHATTELS REAL.
T TAVING in the preceding chapter considered with 11 some attention the several species of injury by difpof. session or ouster of the freehold, together with the regular and well-connected scheme of remedies by actions real, which are given to the subject by the common law, either to recover the possession only, or else to recover at once the possession, and also to establish the right of property; the method which I there marked out leads me next to consider injuries by ouster of chattels real; that is, by amoving the possession of the tes nant from an estate by statute-merchant, statute-staple, recognizance in the nature of it, or elegit ; or from an estate for years.
I. Ouster, or amotion of possession, from estates held by statute, recognizance, or elegit, is only liable to happen by a species of diffeisin, or turning out of the legal proprietor, before his estate is determined by raising the sum for which it is given him in pledge. And for such ouster, though the estate be merely a chattel interest, the owner shall have the same remedy as for an injury to a freehold; viz. by aflife of novel diseifina. But this depends upon the several statutes, which a F. N. B. 178.
create these respective interests, and which expressly provide and allow this remedy in case of dispossession. Upon which account it is that fir Edward Coke observes “, that these tenants are said to hold their estates ut liberum tenementum, until their debts be paid: because by the statutes they shall have an assise, as tenants of the freehold shall have; and in that respect they have the fimilitude of a freehold ".
II. As for ouster, or amotion of poffeslion, from an estate , for years ; this happens only by a like kind of diffeisin, 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 situation of the wrongdoer: the writ of ejectione firmae ; which lies against any one, the lessor, reversioner, remainder-man, or any stranger, 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 person claiming under him. These are mixed actions, somewhat between real and personal; for therein are two things recovered, as well restitution of the term of years, as damages for the ouster or wrong.
1. A writ then of eje&ticne firmae, or action of trespass in ejectment, lieth where lands or tenements are left for a term of years; and afterwards the leitor, reversioner, remainder-man, or any stranger, doth eject or oust the lessee of his termo. In this case he shall have his writ of cjection to call the defende ant to answer for entering on the lands so demised to the plaintiff for a term that is not yet expircd, and ejecting him". And by this writ the plaintiff shall reeover back his terın, or the remainder of it, with damages.
Since the disuse of real actions, this mixed proceeding is r 2007 become the common method of trying the title to lands or
Stat. Weftm. 2. 13 Edw. I. c. 18. Stat. de mercatoritus, 27 Ed*. !II. c. 9. Siat. 23 Hen. VIII. c. 6. $9,
sa Inft. 43.
d See book II. ch. 10.
F. N. B. 220.