CHAPTER V. to determine the right to the possession merely, and were thence called possessory; while others, of a higher nature, of darker antiquity, and more elaborate contrivance, determined the right of property, and were thence called droiturel. Thus, A. dispossessed (or rather disseised) by B., and deprived of his right of entry from having passed the first stage, brought a writ of entry or an assize, in other words, a possessory action, against B. to recover the lost possession. The result of this proceeding was conclusive, as between the claimants, in regard to the present possession, but it left the question in regard to the right of property untouched. The defeated party was still free to prosecute a writ of right, or such other droiturel action as suited his case, in order to obtain a solemn adjudication of the proprietary right. The result of this graver proceeding was conclusive, as between the claimants, in regard to that right, which carried with it their conelu- the right to the possession. In neither case was any sive nature. Mixed actions, ejectment; second trial allowed: but the judgment on the point of possession, or on the point of property, according as the action was possessory or droiturel, determined the particular contest; though, after the trial of even a writ of right, a new claimant might arise, and prevail by the strength of a preferable title. Thus litigants in a real action were reduced to a final issue. It was otherwise in regard to another kind of action, and particularly which, matured by the care of successive judges, at length superseded in a great measure the actions already described, offering, instead of their almost impracticable forms, a series of easy fictions, and which is familiar to the modern practitioner-the action of ejectment; a remedy originally given to a lessee for years, really such, from whom the possession was in truth wrongfully detained, This action, like the action of waste, is of a compound nature, having for its object to recover, as well the posses CHAPTER V. sive nature. sion wrongfully withheld, as compensation for the injury; and, being thus partly real and partly personal, it was called a mixed action. An ejectment might be brought its inconcluagain and again, virtually by the same person, claiming by force of the same right; the foundation of the action being, in modern practice, an imaginary lease, entry and ouster, which may all be feigned at the pleasure of the litigant. Its inconclusive nature, together with its comparative facility and cheapness, recommended it as the ordinary remedy for the recovery of land. Though the judgment in an ejectment decided nothing directly as to the title (n), but concerned the immediate possession only; yet, indirectly, questions of title were decided in this action, which was, indeed, the common expedient for ascertaining legal rights to landed property. Thus, if A. brought his ejectment, claiming under a lease by B., who claimed as devisee under a will, the verdict went only to affirm or disaffirm the ability of B. to make the alleged lease, without defining the quantity or quality of B.'s estate; yet, that ability would depend on the solution of previous questions of construction, as, for example, whether a prior devisee, who had suffered a recovery, took an estate tail or an estate for life only, and whether B. himself, supposing he were dead, had any, and what estate more durable than for his own life. Hence it is obvious that this action afforded the means of obtaining incidentally a judicial opinion on points of title; an opinion, which, if the litigation proceeded no further than carrying the question, in the (n) The consequence of the abolition of real actions, without substituting any other mode of specifically enforcing a legal title to real property, is, that this country is the only part of the civilized world in which no direct form of a special case, be means exist of recovering this im- CHAPTER V. Disuse of real actions as ge a real action was still the only remedy. fore the judges of the court in which the action was brought, had a solemn and authoritative character. The encouragement to litigation held out by the inconclusiveness of an ejectment was, in some degree, corrected by the Court of Chancery, which interfered to restrain by injunction the vexatious use of so ready a weapon. After the action of ejectment was established, most neral remedies; of the real actions fell into neglect, and would have mouldered silently away in the dim repositories of obsolete learning, had not their forms (for the spirit was fled) been occasionally brought to light by some deter mined litigant who had lost his ordinary remedy by -in what cases ejectment (o). That remedy was lost whenever the right of entry was taken away, for it was essential that the supposed lessor (who was the real claimant) should have been competent to make an actual lease to the effect of the fictitious lease on which the action was grounded, and consequently that he should have had a right of entry, as distinguished from a right of action, whether possessory or droiturel. An ejectment was merely a mode of obtaining possession under the sanction of legal process, where the right of taking it with a strong hand existed, until restrained by certain penal statutes (p); and, notwithstanding those statutes, it should seem that every claimant, who has such a right of possession as would entitle him to maintain ejectment, is still competent to take possession, of his own authority, if he can do so without committing a breach of the peace (q). (0) See Davies v. Lowndes, 1 Bing. N. C. 597; 4 Id. 478, 711; 5 Id. 161. (p) 5 Rich. 2, stat. 1, c. 8; 8 Hen. 6, c. 9; and see 1 Hawk. P. C. c. 64. (q) Taylor v. Cole, 3 T. R. 292 b: Taunton v. Costar, 7 T. R. 431; Rex v. Wilson, 8 T. R. 357; Rogers v. Pitcher, 6 Taunt. 202, 7; 1 Marshall, 541: Turner v. Meymott, 1 Bing. 158; 7 B. Moore, 574; Co. Litt. 245. b.; 1 Man. & Ryl. 221, n. (c); 5 Nev. & Man. 164: Reg. v. Newlands, 4 Jurist, 322. CHAPTER V. how lost. There were several means (besides the bar created by the old statute of limitation (r) by which the claimant Right of entry, might be deprived of his right of entry; as, by a descent cast, which occurred where the wrongful possessor died in possession, and the land devolved immediately upon his heir in due course of law; by discontinuance, of which some explanation has already been given (s), and which involved a deprivation even of the right of possession; or by the operation of a warranty contained in a defective conveyance made by the ancestor of the claimant and descending upon him as heir. In these cases, a real action was the only resource. Thus, if A., seised in fee, was disseised by B., who, after having held the possession quietly for five years or more, (which, in the particular case of an actual disseisin, was required by statute (t)), died, leaving C. his heir, who entered, A. or his heir could no longer enter; unless, indeed, the effect of the descent cast, in taking away the right of entry, was prevented by any of the disabilities on the part of the rightful claimant, to be presently noticed in treating of the old statutory limitations (u), or the right was kept alive by continual claim (x) made on or near the land by such claimant. A. was now left to his action, possessory or droiturel; he might still sue out, if not a writ of entry or assize, yet a writ of right, by which, if he should be fortunate enough to surmount all its vexatious niceties, he might be finally restored to his inheritance. So, if A., seised as tenant in tail in possession, enfeoffed B. in fee, and died, the person claiming as heir in tail, remainder-man, or reversioner, was obliged (the feoffment operating as a discontinuance) to bring a writ of forme (r) 21 Jac. 1, c. 16. (s) Ante, 141. (t) 32 Hen. 8, c. 33. (u) 21 Jac. 1, c. 16. (x) Litt. s. 422, 423; see 4 & 5 Anne, c. 16. CHAPTER V. Of the times of limitation fixed tutes; -to real actions; don. There were particular cases in which, the right of entry being gone, no real action could be maintained; so that the scheme of a second and superior remedy was but imperfectly executed. We have already observed that the right never died. After the owner was reduced to a right of action, his rightful fee could not be revived by possession either given or taken, but if the wrongful fee was cast upon him, then, as he could not prosecute an action against himself, he was restored, under the doctrine of remitter, to his former estate. We must now advert to the limits set by the legisby the old sta- lature, before the recent statute, to the prosecution of these different remedies. With respect to real actions, the claimant, if resting his title on the ground of a former seisin by himself, was limited to a seisin within thirty years before the teste of the original writ, as regards both droiturel and possessory actions (y); nor could he, after having been out of possession for thirty years, make an entry (≈), and so entitle himself to bring an action of his own possession gained by such entry: if on the ground of a seisin by his ancestor, to a seisin within fifty years, as regards possessory actions (4), and within sixty years before the teste of the original writ, as regards droiturel actions (b); and it should seem that the heir was in time, if he sued within the sixty years, though the ancestor was barred by having omitted to sue within the thirty years. Thus, a writ of right, the dernier resort, to which, in early times, the only limitation was the failure of traditionary testimony of the right, and to which, at the time of passing the statute that confined droiturel actions within the periods just specified, the only statutory |