Book III. feifin 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 thefe and other minute diftinctions, let us now return to the general writ of right. W THIS Writ ought to be firft brought in the court-baron 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 clofe, being directed to the sheriff 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 use of which, as well as of the former praecipe quia dominus remifit curiam, so as to ouft the lord of his jurifdiction, is restrained by magna cartaa,) and, being directed to the fheriff and originally returnable in the king's courts, is alfo a writ of right close. There is likewife 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 alfo 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 suggestion of either party that there is a delay or defect of justice ". may In the progrefs of this action, the demandant muft allege fome feifin of the lands and tenements in himself, or elfe in fome perfon under whom he claims, and then derive the right 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 seisin could be alleged by the demandant, but from the time of Henry the first; by the ftatute of Merton, 20 Hen. III. c. 8. from the time of Henry the fecond; by the ftatute of Weftm. 1. 3 Edw. I. c. 39. from the time of Richard the firft; and now, by ftatute 32 Hen. VIII. c. 2. feifin in a writ of right shall be within fixty years. So that the poffeffion of lands in fee-fimple uninterruptedly, for three-fcore 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 feveral fpecies 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 abftruse 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 poffeffion must be adverfe, and lord Coke fays, " it has been re folved, 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 reafon 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 ftill form a confiderable branch of the modern law; such as the doctrine of entries and remitter, the levying of fines, and the suffer ing 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, so abfo[197] lately antiquated as to be out of force, though the whole is certainly out of ufe: there being but a very few inftances for more than a century paft of profecuting any real action for land by writ of entry, affife, formedon, writ of right, or otherwife. 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 ufually tried in actions of ejectment or trefpafs; of which in the following chapters. CHAPTER THE ELEVENTH, OF DISPOSSESSION, OR OUSTER, OF CHATTELS REAL. JAVING in the preceding chapter confidered with fome attention the feveral fpecies of injury by difpoffellion or oufter 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 poffeffion only, or elfe 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 eftate by ftatute-merchant, ftatute-ftaple, 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 raifing the fum for which it is given him in pledge. And for fuch oufter, though the eftate be merely a chattel intereft, the owner fhall have the same remedy as for an injury to a freehold; viz. by affife of novel diffeifin. But this depends upon the feveral ftatutes, which F. N. B. 178. create create these respective interests, and which expressly provide and allow this remedy in case 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 statutes they shall have an assise, as tenants of the freehold shall 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 person 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 ouster 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 stranger, doth eject or ouft the leffee of his term. In this cafe he fhall 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 f And by this writ the plaintiff fhall recover back his term, or the remainder of it, with damages. [200] SINCE the disuse of real actions, this mixed proceeding is become the common method of trying the title to lands or Stat. Weftm. 2. 13 Edw. I. c. 18. C 1 Inft. 43. . See book II. ch. 10. e F. N. B. 220. f See appendix. N°II. § 1. tenements. |