husband cannot enter; for though it is within the words, it is not within the intent of the act.-Foster v. Pitfall, 18 Eliz. 1 Leon. 261. It is within the act, though the gift by the husband or his ancestors, by which the wife takes, were made as well in consideration of money paid by the feme or her father, as of the marriage. (Kirkman v. Thompson, E. 1619. Cro. Jac. 474.) But it is otherwise if the land be settled by the ancestor of the wife in consideration of the marriage, and of money paid by the husband; for it shall be intended, that her advancement was the principal cause of the gift. (Kynaston v. Lloyd, M. 1621. Cro. Jac. 624.) But if conveyed by a stranger in consideration of the wife's fortune paid by her father to the vendor, and other money paid by the baron, it is within the act.-Pigott v. Palmer, T. 28 Eliz. Mo. 250. If the issue in special tail, remainder to him in fee levy a fine, and after his mother being tenant in tail within this act lease for three lives, (not warranted by 32 Hen. VIII.) living the issue, the conusee may enter. (Sir George Brown's Case, 24 Eliz. 3 Co. 51.) But if the reversion in fee had been in another, the conusee could not enter, because he would take only by estoppel; nor the heir because he has concluded himself by the fine; (Ward v. Walthew, T. 1608. Cro. Jac. 175.) nor his issue who is likewise barred. But if the wife tenant in tail suffer a recovery, and the *issue in tail release to the recoveror, the issue of that [* 102] issue is not barred thereby.-Lincoln College Case, 38 Eliz. 3 Co. 61. By 21 Jac. I. c. 16. None shall make an entry into land, but within twenty years after their right or title shall first descend or accrue to them, with the usual saving for infants, femes covertes, &c. Therefore if the lessor of the plaintiff be not able to prove himself or his ancestors to have been in possession within 20 years before the action brought, he shall be nonsuited. (a) (a) Unless he can account for the want of it under some of the exceptions of the statute. Taylor, d. Atkyns v. Horde, 1 Burr. 119, and twenty years adverse possession is not only a negative bar to the action but a positive title to the plaintiff. S. C. and vide Stokes v. Berry, Salk. 421. S. P. The king however is not affected by this statute. Lee v. Norris, Cro. Eliz. 331. But now by statute 9 Geo. 3. c. 16, a time of limitation is extended to the king, who is thereby disabled to make title except to liberties and franchises, after twenty years from the commencement of the But even a subject is not affected If a declaration in ejectment be delivered within 20 years, and a trial had, whereby there is a lease, entry and ouster confessed; yet if the plaintiff being nonsuited in that action, bring another after 20 years, that will not be proof of an entry, to bring it out of the statute of limitations, for that must be an actual entry.-Hayward v. Kinsey, M. 13 W. III. 12 Mod. 573. (a) Note; the possession of one joint-tenant or parcener is the possession of another. (Ford v. Grey, H. 2 Ann. Salk. 285.) (b) So if the (a) As to the lessor's right of entry on the land, it was held in Taylor, d. Atkyns v. Horde, sup. that an ejectment being a possessory remedy, the lessor of the plaintiff must have a right of entry when this action is brought, for if his entry be taken away, he cannot make a lease on the land to try his title; and even the modern practice supposes that actual entry, which the old practice required, and though the present practice obliges the defendant to confess lease, &c. for ease and expedition, yet it has made no alteration in the law, nor was it eyer intended to better the plaintiff's title, cr to give him a right of entry he had not before, therefore where tenant in tail makes a discontinuance the issue in tail is put to his formedon, and cannot have an ejectment, because his right of entry is by the discontinuance taken away. So the alienation of a husband, seized in right of his wife, worked a discontinuance of the wife's estate by the common law, but by the statute 32 Hen. VIII. c. 28, no "act of the husband shall work a "discontinuance of or prejudice the "wife's inheritance or freehold, but "after his death she or her heirs “ may enter on her land." Runn. on Eject. 45. By descent also a right of entry may be tolled or taken away, for the law presumes, that the possession, which is transferred from the ancestor to the heir, is a rightful possession until the contrary be shewn, and therefore there, mere entry of him who has a right is not allowed to evict the heir; but by statute 32 Hen. VIII. c. 33. "If a disseisor "die within five years after the dis seisin done, and the lands descend "to his heir, such descent shall not "take away the entry of the dis"seisee, though he made no claim." Yet if there be five years quiet possession in the disseisor, continual claim is still as necessary as it was before the statute. Ibid. 48. Abaters and intruders are not within the statute of 32 Hen. VIII. for that statute being penal was only extended to cases where there was an actual ouster of the tenant, which is a consequence of all disseisins, whether with or without violence; but an abater or intruder remains as at common law, for he ousteth none. Wimbish v. Tailbois, Plowd. 47. Co. Litt. 238. Disscisors, and their heirs, however, are within the express meaning of the statute, which gives the remedy to the disseisce, and though the preamble of the statute only speaks of "disseisins with force," and the body of the statute of "such disseisins," yet it has been extended to all disseisins, as being within the same mischief. Harper's Case, 11 Co. 23. Willowe's Case, 13 Co. 1. Anon. Dy. 219. (a). So the feoffee of a disscisor is not within the statute, for he has not ousted any one, therefore if such feoffee die, and the land descend to his heir, this descent will take away the entry of the disseisee and his heirs. Co. Litt. 238 (a). But bodies politic are within the remedy of the statute, so that the party held him self to a disscisin. Ibid. (a) And so it is of coparceners. Fairclaim, d. Empson v. Shackleton, 5 Burr, 2605. defendant defendant were to prove that the sister of the plaintiff had enjoyed the estate above 20 years, and that he entered as heir to her; the court would not regard it, because her possession would be construed to be by curtesy, and not to make a disherison, but by licence to preserve the possession of the brother, and not to be within the intent of the statute. But perhaps it would be within the statute, if the brother had ever been in the actual possession and ousted by his sister, for then her entry could not possibly be construed to be to preserve his possession.-Page v. Selfby, per Weston, J. in Sussex, 1680. Salk. MSS. Co. Litt. 242. In ejectment for mines, evidence of being lord of the manor is not sufficient, for it is necessary to shew an actual possession of the hereditament in question; and for the same reason a verdict in trover for lead dug out of the mine is no evidence, for trover may be brought on property without possession.-Lord Cullen v. Rich, M. 14 Geo. II. K. B. Et vide ante, note (a) p. 33 c. S. C, Where the plaintiff is devisee of a term, he must prove the assent of the executor to the devise; (Co. Litt. 240.) to which purpose the case of Young v. Holmes, (M. 4 Geo. I. Stra. 70.) is worthy of notice; there the lessee for years had devised his term to his executor for life, paying £50, to J. S. remainder to the lessor of the plaintiff, the executor dying, his executrix entered; and on ejectment it was holden, first, that the executor took as executor and not as legatee, and therefore the remainder over not executed, and that it was incumbent on the remainder. man to prove a special assent thereto as to a legacy; upon which the plaintiff proved payment of the *£50, and that was holden to be a suf- [*103] ficient assent, and the plaintiff recovered. But where it is a freehold it is not necessary to prove possession, for the law casts the freehold on the devisee; and though the heir have entered before him and died, yet that will not bar his entry.-Co. Lit. 240 (b). The confession of lease, entry and ouster, is sufficient in all cases, except in the case of a fine with proclamations, (Jenkin v. Prichard, C. B. M. 30 Geo. II. 2 Wils. 45.) in which case it is necessary to prove an actual entry; and the lessor of the plaintiff directing one to deliver a declaration to the tenant in possession will not amount to such an entry; (Oates, ex dem. Wigfall v. Bridon, E. 6 Geo. III. 3 Burr. 1995. 1901.) and by the 4 Ann. c. 16. s. 16. no claim or entry shall be of force to avoid a fine levied with proclamations, or shall be sufficient within the 21 Jac. I. of limitations, unless the action be commenced within one year after making such entry or claim.-Note, the plaintiff must not lay his demise antecedent to his entry.—Berrington v. Parkhurst, H. 11 Geo. II. 2 Str. 1086. If A. enter on the premises in B.'s name, but without any authority or command from B. but afterwards, and before the time when the demise is laid to be made, B. consents to A's entry, such subsequent consent is sufficient.-Fitchet v. Adams, H. 13 Geo. I. 2 Stra. 1128. A fine having been levied, the lessor of the plaintiff proved that at the gate of the house in question he said to the tenant he was heir of the house and land, and forbade him to pay more rent to the defendant; but he did not enter into the house when he made the demand, on which it was agreed that the claim at the gate was not sufficient. Then it was proved that there was a court before the house, and which belonged to it, and that though the claim was at the gate, yet it was on the land, and not in the street; and that was holden good without question.-Anoń. H. 5 W. & M. Skin. 412. If the plaintiff prove that A. was in the possession of the premises in question, and that his lessor is heir to A. it is sufficient primâ facie; for it shall be intended that 4. had seisin in fee, till the contrary appear. And if he prove that his lessor or his ancestors had possession for twenty years without interruption; till the defendant obtain possession, it is a sufficient title; (Stokes v. Berry, T. 1699. Salk. 421.) (a) for by 21 Jac. I. c. 16, twenty years possession tolls the entry of the person having right, and consequently though the very right be in the defendant, yet he cannot justify his ejecting the plaintiff. (Bishop v. Edwards, per Powel, J. on the Western circuit.) So if an ejectment be brought by a lord against a cottager, twenty years possession is a [104] good title; for if the possession of the manor should be a possession of the cottage, the lord would have a better title to that than to any other part of his estate; yet a distinction has been taken and allowed by all the judges on a case reserved by Lord Chief Baron Pengelly, that if a cottage is built in defiance of a lord, and quiet possession has been had of it for twenty years, it is within the statute: but if it were built at first by the lord's permission, or any acknowledgment have been since made, (though it were one hundred years since) the statute will not run against the lord, for the possession of a tenant at will for ever so many years is no disseisin; there must be a tortious ouster, and it is not to be presumed a country fellow should build in opposition to the lord, unless it be shewn, or conveyances are produced.—Lisle's Lessee v. Harding, C. B. 1727. Case of Holt Wells, 1 Rol. Abr. 659. c. 2. Receipt for rent by a stranger is no evidence of possession, so as to take it out of him in whom the right is, for it is no disseisin without the (a) Vide Stocker v. Berny, Raym. 741, which is S. C. admission admission of him who has the right; not even though he make a lease to the tenant by indenture reserving rent, unless he make an actual entry : (Elvis v. York Archbp. E. 17 Jac. I. Hob. $22.) so though the tenant declare he is in possession for the stranger; (Prenson v. Sone, E. 3 Jac. I. 1 Rol. Abr. 659. c. 12.) though it may be proper to be left to a jury, especially if the stranger have any colour of title.-Dormer v. Fortescue. sup. 99 a. The grantee of a rent charge, with power to enter and retain quousque he be satisfied, has such an estate that he may demise it to a plaintiff in ejectment. (Jemott v. Cowley, M. 19 Car. II. 1 Saund. 112.) (a) So may tenant by elegit, but it will be necessary for him to prove the judgment, the elegit taken out upon it, and the inquisition and return thereupon, by which the land in question is assigned to him; and if by that it appear, that more than a moiety was extended, he could not recover, for it would be ipso facto void, and not need a judgment or audita querela to avoid it.-Pullen v. Birbeck, H. 13 W. III. 1 Ld. Raym. 718. Salk. 563. S. C. nom. Putten v. Purbeck. (b) So the conusee of a statute-merchant may bring ejectment, but then he must prove a copy of the statute, and of the capias si laicus returned, and the extent also returned, and also the liberate returned; for though by the return of the extent an interest be vested in the conusee, yet the actual possession of the interest is by the liberate.-Wood v. Palmer, per Blencowe, Dorchester, 1699. Salk. MSS. Hammond. Wood, Salk. 563. S. P. An extent gives only a possession in law. So also it seems on an exe cution on a judgment in dower; and therefore they will not enable a sheriff to use force, which may be necessary for the delivery of an actual possession.-Lindsey v. Lindsey, M. 8 Ann. Salk. 291. The plaintiff made title under one who obtained judgment by default [105] against the heir upon a bond of his ancestor, and had taken out a general elegit against all the land of the heir. (a) And this point is now settled, whether the rent be created by grant at common law or by way of use, and in such case it was formerly held that an actual entry must be made, because the title accrues by the grantee's entering. It was, however, determined by Lord Hale, in Little v. Heaton, Ld. Raym. 750. Salk. 259. long before the statute 4 Geo. 2. c. 28. that in such case the general confession was sufficient, The defendant's title was likewise without the proof of an actual en- (b) But in executing an elegit, by |