mort d'ancestor lay by an heir, after an abatement by a stranger on Mort d'ancestor. the lands, &c., of which his father or mother, brother or sister, uncle or aunt, nephew or niece, was seised at the day of his or her death: But this writ did not lie upon an abatement, after the death of the grandfather or grandmother, or great grandfather or great grandmother, or of the tresaiel, or other collateral cousin more remoteb. sentment. An assise of darrein presentment lay, where a man, or his ancestor, had Darrein pre- without praying in aid of the patron and ordinary e, &c. The writ of Nuisance. of two things; 1. to have the nuisance abated; and 2. to recover Writs of entry into lands or tenements shewed by what means Writs of entry. the tenant entered, and what cause the demandant had to demand the possession; and were founded upon the entry of the tenant after a disseisin, intrusion, alienation, or abatement. Upon a Upon a disdisseisin, they were in the quibus, or in nature of an assise, for a disseisin done to the demandant, or his ancestors. In this writ, ment of wastes, &c. See also the statutes of Westm. I. (3 Edw. I.) c. 24. Westm. II. (13 Edw. I.) c. 25. 1 Rich. II. c. 9. 1 Hen. IV. c. 8. and 4 Hen. IV. c. 8, by which double or treble damages were given, upon disseisins in particular cases. Tidd Prac. 9 Ed. 870. * F. N. B. 195. Co. Lit. 159. a. Booth, 206. Finch L. 290. Com. Dig. tit. Assise, C. 3 Chit. Blac. Com. 185. 231. 1 Rosc. 127. By the statute of Marlbridge, (52 Hen. III.) c. 16, damages were given in an assise of mort d' ancestor, in cases where the land was recovered against the chief lord; and, by the statute of Gloucester, (6 Edw. 1.) c. 1. §1. damages were given in all cases where a man recovered by assise of mort d'ancestor, &c. F. N. B. 221. Com. Dig. tit. Assise, F. N. B. 31. Com Dig. tit. Quare d F. N. B. 48. Co. Lit. 159. a. f F. N. B. 183. 3 Chit. Blac. Com. & 9 Co. 55. 3 Chit. Blac. Com. 221. Booth, 172. Com. Dig. tit. Dum fuit infra ætatem, A. i F. N. B. 191. Booth, 174. Com. Dig. tit. Dum fuit infra ætatem, H. 1 Rosc. 91. seisin. Degrees in. Upon an intrusion. ation. there were three degrees; 1. in the per, when the tenant claimed by him who made the disseisin; 2. in the per and cui, when he claimed in the second degree; and 3. in the post, when he claimed after the two former degrees were past a: And on this latter writ common recoveries were usually suffered. The writ of entry upon an intrusion lay, where any one intruded after the death of a particular tenant; or intruded upon or detained lands, after a term had expired, which was called a writ of entry ad terminum qui præterit; or where a woman gave land to a man, in fee or for life, to marry her in convenient time, and he did not, in which case she might have recovered the land by writ of entry causá matrimonii Upon an alien- prælocuti . The writs of entry upon an alienation were first, where the alienation was made by a person incapable, as by an infant, idiot, or person in prison, &c.; secondly, where it was made by a particular tenant; thirdly, where it was made by a husband, of his wife's estate; and fourthly, by ecclesiastical persons. By a person in- Of the first kind were the writs of dum fuit infra ætatem, dum capable. fuit non compos mentis, and dum fuit in prisonás; which lay for a person of full age, or one who had recovered his understanding, or liberty, after having, when under age, insane, or in prison, aliened By a particular his lands; or for the heir of such alienor. Of the second kind were the writ of entry ad communem legem, which lay for the reversioner, after the alienation and death of the particular tenant for life; and the writs in casu proviso1, and in consimili casu, which lay not at common law, but were given by the statutes of Gloucester, (6 Edw. 1.) c. 7, & Westm. II., (13 Ed. 1.) c. 24, for the reversioner, after the alienation, but during the life of the tenant tenant. a F. N. B. 191. Booth, 172. 175. Com. Dig. tit. Dum fuit infra ætatem, A. 3 Chit. Blac. Com. 180, 81. 3 Chit. Pl. 1339, &c. 1 Rosc. 88. b F. N. B. 203. Booth, 181. Com. CF. N. B. 201. Booth, 195. Com. d F. N. B. 205. Co. Lit. 204. 226. e F. N. B. 192. Booth, 193. Com. Dig. tit. Dum fuit infra ætatem. 1 Rosc. 93. f F. N. B. 202. Booth, 189. Com. Dig. tit. Dum fuit infra ætatem, B. 1 Rosc. 92, 3. 2 Inst. 482. 1 Rosc. 93. h F. N. B. 207. Booth, 190. Com. Dig. tit. Dum fuit infra ætatem, C. 1 Rosc. 93. i F. N. B. 205. Booth, 197. Com. Dig. tit. Dum fuit infra ætatem, D. 1 Rosc. 94. F. N. B. 206. Booth, 199. Com. Dig. tit. Dum fuit infra ætatem, E. 1 Rosc. 95. of his wife's estate. By dean, &c. without consent of chapter. in dower, or other tenant for life. Writs of the third kind were By husband, the cui in vitáa, and cui ante divortium ↳, which formerly lay for a woman, when a widow, or divorced, whose husband during the coverture, (cui in vitá suá, vel cui ante divortium, ipsa contradicere non potuit,) aliened her estate; sur cui in vitá, and sur cui ante divortium, which lay, in such case, for the heir of the wife; and, of the fourth kind, by ecclesiastical persons, was the writ of entry sine assensu capituli, which lay for the successor, upon an alienation by the dean, &c. without the consent of the chapter. The writ of entry, Upon an abateupon an abatement, lay where a person died seised of an inheritance, and, before the heir or devisee entered, a stranger, who had no right, made entry, and got possession of the freehold : The proper remedy however, for the recovery of land, after an abatement, seems to have been by assize of mort d'ancestor, or writ of aiel, besaiel, or cosinage. ment. possessory. The assise of mort d'ancestor, we have seen, did not lie upon Writs ancestrel the death of any ancestor, except a father or mother, brother or sister, uncle or aunt, nephew or niece: Therefore, upon the death of any other ancestor, the writ of aiel, besaiel, or cosinage, was the proper remedy. And where lands were devisable in a man's last will, by the custom of the place, there an assize of mort d'ancestor did not lie, but the writ ex gravi querelá1; and therefore, when all lands were devisable by the statute of wills, &c. the assise of mort d'ancestor seems to have become obsolete 8. An aiel, or besaiel, Aiel, or besaiel. lay for the heir, upon an abatement after the death of the grandfather or grandmother, or great grandfather or great grandmother; and a writ of cosinage, upon the death of the grandfather's grand- Cosinage. father or grandmother, or any collateral relation, other than those for whom a mort d'ancestor lay. A nuper obiit lay when one parcener, Nuper obiit. Difference between rationabili parte, and nuper obüt. Re-disseisin. Post disseisin. after the death of the ancestor, ousted the other a. The difference between a writ of right de rationabili parte, of which we have before spoken, and a nuper obiit, consisted in this, that the former might have been grounded upon the seisin of the ancestor, at any time during his life; but in the latter, he must have been seised at the time of his death. In order to prevent frequent and vexatious disseisins, the writ of re-disseisin was given by the statute of Merton, (20 Hen. III.) c. 3., after a recovery in assise, of land, rent, or commond, &c. ; and the writ of post disseisin, which was given by the same statute, after a recovery by verdict, in any real Other possessory action e. And, besides the writs which have been mentioned, there were others of a possessory nature, for the benefit of joint tenants, or tenants in common, and respecting nuisances, or waste: as the writ de partitione facienda, for making partition between joint tenants, and tenants in common; the writ de reparatione facienda, which lay where there were two joint tenants, or tenants in common of a mill or house, &c., which fell to decay, and one would repair, but the other would not repair the same 8; the writ of quod permittat prosternere, to abate a nuisance 1; and the writ of estrepement, for the prevention of waste 1. writs. De partitione faciendâ. De reparatione facienda. Quod permittat prosternere. Estrepement of waste. Mixed actions, what. Dower unde nihil habet. Mixed actions were Dower unde nihil habet, Quare impedit, Ejectment, Quare ejecit infra terminum, Waste, and Covenant real. The writ of dower, unde nihil habet, was formerly considered as a writ of right in its nature; and lay in all cases where a woman had a right to dower', except where she had received part from d F. N. B. 188. Booth, 260. Com. Dig. tit. Assise, F. 1. 3 Chit. Blac. Com. 188. 1 Rosc. 70. e F. N. B. 190. Booth, 260. Com. Dig. tit. Assise, F. 1. 3 Chit. Blac. Com. 188. 1 Rosc. 72. Double damages were recoverable upon the writ of re-disseisin, or post disseisin, by the statute Westm. II. (13 Edw. 1.) c. 26. Booth, 260. 1 Rosc. 73. F. N. B. 61. Booth, 244. Com. Dig. tit. Pleader, 3 F. 1, &c. 2 Chit. Blac. Com. 189. 3 Chit. Pl. 5 Ed. 1390, &c. 1 Rosc. 130. 2 Cromp. Pr. 308, &c. 2 Sel. Pr. 307, &c. and see stat. 8 & 9 W. III. c. 31. 5 F. N. B. 127, but see Tenant v. Goldwin, 2 Ld. Raym. 1093. where it was said by Holt, Ch. J. that this writ was grounded on the custom of a place, and not upon the common law. h F. N. B. 124. 3 Chit. Blac. Com. 221, 2. i F. N. B. 60, 61. 3 Chit. Blac. Com. 225, 6. 1 Rosc. 124. Ante, 3. As to the widow's right to dower, see stat. 3 & 4 W. IV. c. 105. CHAP. I. No arrears of dower to be recovered for more the tenant, in the same town wherein she demanded it a. In this action, the widow is entitled, by the statute of Merton, (20 Hen. III.) c. 1. to recover in damages the value of her dower, from the time of the death of her husband: But, by the statute 3 & 4 W. IV. C. 27. § 41. "no arrears of dower, nor any damages on account of "such arrears, shall be recovered or obtained, by any action or than six years. "suit, for a longer period than six years next before the commence"ment of such action or suit." The writ of quare impedit is an Quare impedit. ancient writ, which lies by him who, being in possession of an advowson of a church, is disturbed in his presentation: And, by the statute of Westm. II. (13 Edw. I.) c. 5. § 3. damages are given in writs of quare impedit, and darrein presentment. The action of ejectment is, in point of form, a personal action of Ejectment. trespass ; but, in effect, it is a mixed action, by which a lessee for years, when ousted of his possession, may recover his term, and damages: It is real in respect of the lands, but personal in respect of the damages. The writ of quare ejecit infra terminum Quare ejecit lay, where a man leased lands to another for years, and afterwards infra terminum. he entered and made a feoffment in fee, or for life, of the same lands, to a stranger; in which case the lessee might have had this writ against the feoffee, or lessee for life, and recovered his term again, and damages also, if it were not ended; if it were, then all his damages 6. a F. N. B. 147, 8. Booth, 166. Com. Dig. tit. Dower, G. 2. tit. Pleader, 2 Y. 1, &c. Bac. Abr. tit. Dower, I. 2 Wms. Saund. 5 Ed. 43, 4. (1, 2, 3, 4.) 3 Chit. Blac. Com. 183. 3 Chit. Pl. 1311, &c. 1 Rosc. 39. 2 Cromp. Pr. 328, &c. 2 Sel. Pr. 291, &c. b For the construction of this statute, and in what cases the widow was entitled to damages thereon, see Co. Lit. 32, 3. 2 Inst. 356. and see F. N. B. 32. Booth, 223. Mallory's Quare Impedit. Com. Dig. tit. Quare Impedit, D. tit. Pleader, 3 I. 1, &c. 3 Blac. Com. 246, &c. 3 Chit. Pl. 1301, &c. 1 Rosc. 100, &c. 2 Lee Pr. Dict. 975. 2 Cromp. Pr. 296, &c. Sel. Pr. 320, &c. d Steph. Pl. 22. Id. Append. vii, viii. e F. N. B. 220. H. and see Com. Run. Eject. 2 Ed. 501, 2. and see |