CHAPTER IV.

REAL AND MIXED ACTIONS.

SECTION 9. IN GENERAL.

The number of different real actions was, in early times, very large. It is impossible to give the exact number of such actions, but there appear to have been several hundred of them in all. Real actions were divided into proprietary actions, by which the right of property was determined; and possessory actions, by which only the right of possessoin was settled.

Mixed actions were those brought for the recovery both of the land and for damages for its detention.

SECTION 10. WRIT OF RIGHT.

The proprietary right to an estate in fee simple was determined by the writ of right often referred to as the grand assize, from the method of trial granted by Henry II, in actions of this character. There were four forms of writs of right proper: (a) the writ or right patent; (b) the writ of right quia dominus remisit curiam' (c) the writ of right precipe in capite, and (d) the writ of right patent in London.

SECTION 11. WRITS IN THE NATURE OF WRITS OF RIGHT.

In addition to the true writs of right there were a large number of writs in the nature of writs of right, which were used for the purpose of recovering the right of property in incorporeal hereditaments, or of corporeal estates less than fee simples. The most

important of this class of writs, with the purpose of each, were as follows:

Writ of formedon, to recover an estate in fee tail. Writ of advowson, to recover the right of presentation to a benefice.

Writ of right de rationabli parte, to recover the plaintiff's proper share of the estate, this writing only being used between privies in blood.

Writ of dower, writ of right of dower, and writ of dower unde nihil habet, to recover estates in dower. Little writ of right close to recover estates in an ancient demesne.

SECTION 12. THE LESSER ASSIZES.

The lesser assizes were four possessory actions in which the assize, or trial by jury, was permitted. The development of these assizes is described in the following extracts from Pollock and Maitland's History of English Law1:

"Thus the sworn inquest begins to make its way into our ordinary civil procedure. In a proprietary action for land or for advowson, the 'tenant,' the passive party, may, rejecting battle, 'put himself upon the grand assize of our lord the king,' and an inquest Iwill then be called in to declare who has the better right. In four other cases a plaintiff may begin proceedings by obtaining a royal writ, which will direct that an inquest shall be sworn to answer a particular question formulated in the writ. These four cases are the subject-matter of the four petty assizes, (1) the assize utrum, (2) the novel disseisin, (3) the mort d'ancestor, (4) the darrein presentment. It is probable that for a short time a few other cases were met in a 1 Vol. I, extracts from pages 124-7, 1st Ed.

similar fashion; but in a little time we have these four and only these four petty assizes. Only in these four instances does the writ which is the first step in the procedure, 'the original writ,' direct the empanelling of an inquest."

"Some two years later, perhaps at the council held at Clarendon in the first months of 1166, Henry took a far more important step. He issued an ordinance and instituted a procedure. Ordinance and procedure alike were known as the assize of novel disseisin (assia novae disseisinae). At that council was published the edict known as the Assize of Clarendon, which deals with criminal matters and which served as instructions for the justices who were being sent out on a great eyre throughout the land. We fix this date as that of the assize of novel disseisin because the next pipe roll, a roll which records the abundant profits reaped by the itinerant justices in the field of criminal law, gives us also our first tidings of men being amerced for disseisin against the King's assize; from that moment onwards we get such tidings year by year.

"Of this ordinance, which was in the long run to prove itself one of the most important laws ever issued in England-we have not the words-Bracton tells us that wakeful nights were spent over it, and we may well believe him, for the principle that was to be enforced was a revolutionary one. It was this: If one person be disseised, that is, dispossessed, of his free tenement unjustly and without a judgment, he is to have a remedy by royal writ; a jury to be empanelled; in the presence of the King's justices, it is to answer this simple question about seisin and disseisin; if it gives the plaintiff a verdict he is to be restored to his possession. We may state the matter

in two other ways: by the one we may show what is being done for our private, by the other what is being done for our public law. (1) Possession or seisin, as something quite distinct from ownership or best right, is to be protected by an unusually rapid remedy. (2) The seisin of a free tenement, no matter of what lord it be holden, is protected by the kind. Hereafter, in connection with property law we may speak of the private side of this new remedy and of its relation to the actio spolii of the canon law; here we have but to notice the great principle of public law that the King has laid down. The ownership of land may be a matter for the feudal courts; the King himself will protect by royal writ and inquest of neighbors every seisin of a free tenement. It is a principle that in course of time can be made good even against kings. The most famous words of Magna Charta will enshrine the formula of the novel disseisin."

"Then to all seeming, the council held at Northampton in 1176, instituted a second possessory assize, the assize of mort d'ancestor (assia de morte antecessoris). Apparently we have the words whereby this was accomplished, though the practice of the courts soon left those words behind it. The principle of the novel disseisin is that one man, even though he claims and actually has the ownership of the land, is not to turn another man out of possession without first obtaining a judgment. The principle of the mort d'ancestor is that if a man has died in seisin, that is, in possession of a tenement and was not holding it as a mere life-tenant, his heir is entitled to obtain possession of it as against every other person, no matter that such person claims and actually has a better right to the land than the dead man had. Such a right, if it

action; it is not to be seizure of the vacant thus struck at feudal

exists, must be asserted in an asserted by 'self-help' by a tenement. Another blow is justice, and a heavy one, for the defendant in an assize of mort d'ancestor is very likely to be the dead tenant's lord, who will have seized the lands upon some pretext of making good his seignorial claims. Another use is found for the inquest of neighbours, for the questions whether the dead man died seised and whether the claimant is his heir will be decided by verdict."

"Scarcely less important than litigation about land is litigation about the advowsons of churches. Henry has here asserted as against the church that such litigation belongs to a temporal forum, and as against the feudatories that it belongs to the king's own court. A proprietary action for an advowson must be begun in the King's court by royal writ, writ of right of advowson, the claimant must offer battle; his adversary may choose between battle and the grand assize. Then at some time or another during his reign, Henry gives a possessory action, the assize of darrein presentment (assia de ultima presentatione) which stands to the writ or right of advowson in somewhat the same relation in which the novel disseisin stands to the writ of right for land. If the church be vacant, and two persons be quarreling about the advowson, it is very necessary that some provisional, some possessory judgment should be given. Especially necessary is this after the Lateran Council of 1179, for should the church remain vacant for three months the diocesan bishop will fill up the vacancy. The principle of the new assize is, simply stated, this, 'He who presented last time, let him present this time also, but this with