remainder or reversion. An intrusion is always immediately consequent upon the determination of a particular estate; an abatement is always consequent upon the descent or devise of an estate in fee-simple. And in either case the injury is equally great to him whose possession is defeated by this unlawful occupancy. Disseisin.

3. The third species of injury by ouster, or privation of the freehold, is by disseisin. Disseisin is a wrongful putting out of him that is seised of the freehold. Disseisin may be effected either in corporeal inheritances or incorporeal. Disseisin of things corporeal, as of houses, lands, etc., must be by entry and actual dispossession of the freehold. Disseisin of incorporeal hereditaments cannot be an actual dispossession; for the subject itself is neither capable of actual bodily possession, or dispossession; but it depends on their respective natures, and various kinds, being in general nothing more than a disturbance of the owner in the means of coming at or enjoying them.

These three species of injury, abatement, intrusion, and disseisin, are such wherein the entry of the tenant, ab initio, as well as the continuance of his possession afterwards, is unlawful. But the two remaining species are where the entry of the tenant was at first lawful, but the wrong consists in the detaining of possession afterwards.

Discontinuance.

4. Such is, fourthly, the injury of discontinuance; which happens when he who hath an estate tail maketh a larger estate of the land than by law he is entitled to do: in which case the estate is good, so far as his power extends who made it, but no further. Deforcement.

5. The fifth and last species of injuries by ouster or privation of the freehold, is that of deforcement. This, in its most extensive sense, is a much larger and more comprehensive expression than any of the former: it then signifying the holding of any lands or tenements to which another person hath a right. So that this includes as well an abatement, an intrusion, a disseisin, or a discontinuance, as any other species of wrong whatsoever, whereby he that hath right to the freehold is kept out of possession. But as contradistinguished from the former, it is only such a detainer of the freehold from him that hath the right of property, but never had any possession under that right, as falls within none of the injuries which we have before explained.

The Remedy-Methods of Obtaining It.

The several species and degrees of injury by ouster being

thus ascertained and defined, the next consideration is the remedy, which is universally, the restitution or delivery of possession to the right owner; and, in some cases, damages also for the unjust amotion. The methods whereby these remedies, or either of them, may be obtained, are various.

Entry.

I. The first is that extrajudicial and summary one, of entry by the legal owner, when another person, who hath no right, hath previously taken possession of lands or tenements. In this case the party entitled may make a formal, but peaceable entry thereon, declaring that thereby he takes possession; which notorious act of ownership is equivalent to a feodal investiture by the lord; or he may enter on any part of it in the same county, declaring it to be in the name of the whole; but if it lies in different counties he must make different entries. Also if there be two disseisors, the party disseised must make his entry on both; or if one disseisor has conveyed the lands with livery to two distinct feoffees, entry must be made on both: for as their seisin is distinct, so also must be the act which divests that seisin. If the claimant be deterred from entering by menaces or bodily fear, he may make claim as near to the estate as he can, with the like forms and solemnities; which claim is in force only for a year and a day. And this claim, if it be repeated once in the space of every year and a day, has the same effect with, and in all respects amounts to a legal entry. Such an entry gives a man seisin, or puts into immediate possession him that hath right of entry on the estate, and thereby makes him complete owner, and capable of conveying it from himself by either descent or purchase.

This remedy by entry takes place in three only of the five species of ouster, viz., abatement, intrusion, and disseisin. But, upon a discontinuance, or deforcement, the owner of the estate cannot enter, but is driven to his action; for herein, the original entry being lawful, and thereby an apparent right of possession being gained, the law will not suffer that right to be overthrown by the mere act or entry of the claimant. Yet a man may enter on his tenant by sufferance: for such tenant hath no freehold, but only a bare possession: which may be defeated, like a tenancy at will, by the mere entry of the owner.

This remedy by entry must be pursued, according to statute 5 Ric. II. st. 1, c. 8, in a peaceable and easy manner; and not with force or strong hand. For, if one turns or keeps another out of possession forcibly, this is an injury of both a civil and a criminal nature. The civil is remedied by immediate restitution; which puts the ancient possessor in statu quo: the criminal injury, or public

wrong, by breach of the king's peace, is punished by fine to the king. For by the statute 8 Hen. VI. c. 9, upon complaint made to any justice of the peace, of a forcible entry, with strong hand on lands or tenements; or a forcible detainer after a peaceable entry; he shall try the truth of the complaint by jury, and, upon force found, shall restore the possession to the party so put out: and in such case, or if an alienation be made to defraud the possessor of his right (which is likewise declared to be absolutely void), the offender shall forfeit, for the force found, treble damages to the party grieved, and make fine and ransom to the king. But this does not extend to such as endeavor to keep possession manu forti, after three years' peaceable enjoyment of either themselves, their ancestors, or those under whom they claim; by a subsequent clause of the same statute, enforced by statute 31 Eliz. c. II.

When There is the Apparent Right of Possession.

II. Thus far of remedies, when tenant or occupier of the land hath gained only a mere possession, and no apparent shadow of right. Next follow another class, which are in use where the title of the tenant or occupier is advanced one step nearer to perfection; so that he hath in him not only a bare possession, which may be destroyed by a bare entry, but also an apparent right of possession, which cannot be removed but by orderly course of law; in the process of which it must be shown, that though he hath at present possession, and therefore hath the presumptive right, yet there is a right of possession, superior to his, residing in him who brings the action.

These remedies are either by writ of entry, or an assise; which are actions merely possessory; serving only to regain that possession, whereof the demandant (that is, he who sues for the land) or his ancestors have been unjustly deprived by the tenant or possessor of the freehold, or those under whom he claims. They decide nothing with respect to the right of property; only restoring the demandant to that state or situation, in which he was (or by law ought to have been) before the dispossession committed. But this without any prejudice to the right of ownership: for, if the dispossessor has any legal claim, he may afterwards exert it, notwithstanding a recovery against him in these possessory actions. Only the law will not suffer him to be his own judge, and either take or maintain possession of the lands, until he hath recovered them by legal means; rather presuming the right to have accompanied the ancient seisin, than to reside in one who had no such evidence in his favour.

Writ of Entry.

I.

The first of these possessory remedies is by writ of entry; which is that which disproves the title of the tenant or possessor,

by showing the unlawful means by which he entered or continues possession. The writ is directed to the sheriff, requiring him to "command the tenant of the land that he render to the demandant the land in question, which he claims to be his right of inheritance; and into which, as he saith, the said tenant had not entry but by (or after) a disseisin, intrusion or the like, made to the said demandant, within the time limited by law for such actions; or that upon refusal he do appear in court on such a day, to show wherefore he hath not done it." This is the original process, the praecipe upon which all the rest of the suit is grounded: wherein it appears that the tenant is required either to deliver seisin of the lands, or to show cause why he will not. This cause may be either a denial of the fact of having entered by or under such means as are suggested, or a justification of his entry by reason of title in himself or in those under whom he makes claim: whereupon the possession of the land is awarded to him who produces the clearest right to possess it.

This remedial instrument, or writ of entry, is applicable to all the cases of ouster before mentioned, except that of discontinuance by tenant in tail, and some peculiar species of deforcements. But in general the writ of entry is the universal remedy to recover possession, when wrongfully withheld from the owner.

Writ of Assize.

2. As a writ of entry is a real action which disproves the title of the tenant by showing the unlawful commencement of his possession, so an assize is a real action which proves the title of the demandant merely by showing his or his ancestor's possessions; and these two remedies are in all other respects so totally alike that a judgment or recovery in one is a bar against the other; so that when a man's possession is once established by either of these possessory actions it can never be disturbed by the same antagonist in any other of them.

This remedy by writ of assize, is only applicable to two species of injury by ouster, viz., abatement, and a recent or novel disseisin. This writ directs the sheriff to summon a jury or assize, who shall view the land in question, and recognize whether such ancestor was seised thereof on the day of his death, and whether the demandant be the next heir: soon after which the judges come down by the king's commission to take the recognition of assize: when, if these points are found in the affirmative, the law immediately transfers the possession from the tenant to the demandant. Limitation of the Action.

In all these possessory actions there is a time of limitation settled, beyond which no man shall avail himself of the possession.

of himself or his ancestors, or take advantage of the wrongful possession of his adversary.

This time of limitation by statute was successively dated from particular eras, viz., from the return of King John from Ireland, and from the coronation, etc., and afterwards by limiting a certain period, as fifty years for lands, and the like period for customary and prescriptive rents suits, and services, and enacting that no person should bring any possessory action, to recover possession thereof merely upon the seisin, or dispossession of his ancestors, beyond such certain period. And all writs, grounded upon the possession of the demandant himself, are directed to be sued out within thirty years after the disseisin complained of; for if it be an older date, it can with no propriety be called a fresh, recent or novel disseisin.

The Right of Property-the Remedy.

III. By these several possessory remedies the right of possession may be restored to him that is unjustly deprived thereof. But the right of possession (though it carries with it a strong presumption) is not always conclusive evidence of the right of property, which may still subsist in another man. For, as one man may have the possession, and another the right of possession, which is recovered by these possessory actions; so one man may have the right of possession, and so not be liable to eviction by any possessory action, and another may have the right of property, which cannot be otherwise asserted than by the great and final remedy of a writ of right, or such correspondent writs as are in the nature of a writ of right.

Four cases Demanding a Remedy.

This happens principally in four cases: 1. Upon discontinuance by the alienation of the tenant in tail: whereby he who had the right of possession hath transferred it to the alienee; and therefore his issue, or those in remainder or reversion, shall not be allowed to recover by virtue of that possession, which the tenant hath so voluntarily transferred. 2, 3. In case of judgment given against either party, whether by his own default, or upon trial of the merits, in any possessory action: for such judgment, if obtained by him who hath not the true ownership, is held to be a species of deforcement; which, however, binds the right of possession, and suffers it not to be ever again disputed, unless the right of property be also proved. 4. In case the demandant, who claims the right, is barred from these possessory actions by length of time and the statute of limitations before mentioned; for an undisturbed possession for fifty years ought not to be divested by anything but a very clear proof of the absolute right of property.