away; and he cannot recover possession against the heir by this summary method, but is driven to his action to gain a legal seizin of the estate. So that in general it appears, that no man can recover possession by mere entry on lands, which another hath by descent. Yet this rule hath some exceptions, wherein those reasons cease upon which the general doctrine is grounded; especially if the claimant were under any legal disabilities, during the life of the ancestor, either of infancy, coverture, imprisonment, insanity, or being out of the realm in all which cases there is no neglect or laches in the claimant, and therefore no descent shall bar, or take away his entry. And no descent to the heir of the disseisor shall take away the entry of him that has right to the land, unless the disseisor had peaceable possession five years next after the disseizin. On the other hand, it is enacted, by the statute of limitations, 21 Jac. I. c. 16. that no entry shall be made by any man upon lands, unless within twenty years after his right shall accrue. And by statute 4 & 5 Ann. c. 16. no entry shall be of force to satisfy the said statute of limitations, or to avoid a fine levied of lands, unless an action be thereupon commenced within one year after, and prosecutedwith effect. II. Thus far of remedies, where the 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 shewn, 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 a writ of entry or an assize: 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. I have now gone through the several species of injury by ouster and dispossession of the freehold, with the remedies applicable to each: there are, however, but very few instances for more than a century past of prosecuting any real action for land by writ of entry, assize, formedon, writ of right, or otherwise: the title of lands being now usually tried in actions of ejectment or trespass; of which in the following chapters. CHAPTER XI. OF DISPOSSESSION, OR OUSTER OF CHATTELS REAL. I SHALL NOW consider injuries by ouster of chattels real; that is, by amoving the possession of the tenant from an estate by statute-merchant, statutestaple, recognizance in the nature of it, or elegit; or from an estate for years. 1. Ouster, or amotion of possession, from estates held by statute, recognizance, or elegit, is only liable to happen by a species of disseizin, or turning out of the legal proprietor, before his estate is determined by raising the sum for which it is given him in pledge. II. As for ouster, or amotion of possession, from an estate for years; this happens only by a like kind of disseizin, ejection, or turning out, of the tenant from the occupation of the land during the continuance of the term. For this injury the law has provided him with two remedies, according to the circumstances and situation of the wrongdoer the writ of ejectione firma; which lies against any one, the lessor, reversioner, remainderman, or any stranger, who is himself the wrongdoer and has committed the injury complained of: : and the writ of quare ejecit infra terminum; which lies not against the wrong-doer or ejector himself, but his feoffee or other person claiming under him. These are mixed actions, somewhat between real and personal; for therein are two things recovered, as well restitution of the term of years, as damages for the ouster or wrong. 1. A writ then of ejectione firmæ, or action of trespass in ejectment, lieth where lands or tenements are let for a term of years; and afterwards the lessor, reversioner, remainder-man, or any stranger, doth eject or oust the lessee of his term. Since the disuse of real actions, this mixed proceeding is become the common method of trying the title to lands or tenements. And, to prevent fraudulent recoveries of the possession, by collusion with the tenant of the land, all tenants are obliged, by statute 11 Geo. II. c. 19. on pain of forfeiting three years rent, to give notice to their landlords, when served with any declaration in ejectment and any landlord may, by leave of the court, be made a co-defendant to the action, in case the tenant himself appears to it. The damages recovered in these actions, are now usually very small and inadequate; amounting commonly to one shilling or some other trivial sum. In order therefore to complete the remedy, when the possession has been long detained from him that had the right to it, an action of trespass also lies, after a recovery in ejectment, to recover the mesne profits which the tenant in possession has wrongfully received. In this case the judgment in ejectment is conclusive evidence against the defendant, for all profits which have accrued since the date of the demise stated in the former declaration of the plaintiff. But a writ of ejectment is not an adequate means to try the title of all estates; for on those things, whereon an entry cannot in fact be made, no entry shall be supposed by any fiction of the parties. Therefore an ejectment will not lie of an advowson, a rent, a common or other incorporeal hereditament; except for tithes : nor will it lie in such cases, where the entry of him that hath right is taken away by descent, discontinuance, twenty years dispossession, or otherwise. This action of ejectment is however rendered a very easy and expeditious remedy to landlords whose tenants are in arrear, by statute 4 Geo. II. c. 28. which enacts, that every landlord, who hath by his lease a right of re-entry in case of nonpayment of rent, when half a year's rent is due, and no sufficient distress is to be had, may serve a declaration in ejectment on his tenant, or fix the same upon some notorious part of the premises, which shall be valid, without any formal re-entry or previous demand of rent. And a recovery in such ejectment shall be final and conclusive, both in law and equity, unless the rent and all costs be paid or tendered within six calendar months afterwards. 2. The writ of quare ejecit infra terminum lieth, by the ancient law, where the wrong-doer or ejector is not himself in possession of the lands, but |