An appeal lies in replevin from the county court where the amount of rent or damage exceeds 201. (b), or where the title comes in question, or, by leave of the judge, in any other case (c). If the replevisor elect to commence his action in a superior court (which in such case will have power to hear and determine the same), he must, at the time of replevying, give security, to be approved of by the registrar, the condition of such security being that the party giving it will commence an action of replevin against the distrainor in the court specified within one week from the date thereof, and will prosecute such action with effect and without delay, and unless judgment therein be obtained by default, will "prove before such superior court that he had good ground for believing either that the title *to some corporeal or incorporeal hereditament, or to some toll, [265] market, fair, or franchise, was in question, or that such rent or damage exceeded 201.," and will make return of the goods, if a return thereof be adjudged (d). Should the plaintiff succeed in such action, he retains the goods replevied to him, together with small damages for their detention; whereas, if the defendant succeeds, he will be entitled to a return of the goods, and also, under the stat. 17 Car. 2, c. 7, already noticed (e), to his rent and costs. And thus much for replevin, which finishes our inquiries into such wrongs as may be offered to personal property, with their respective remedies by action. *CHAPTER XI. JURISDICTION OF SUPERIOR COURTS OF LAW. WRONGS TO REAL PROPERTY. [*266] WE have now to consider such wrongs as affect that species of property which the laws of England have denominated real; they are usually of a more substantial and permanent nature than those which affect the more transitory rights attaching to chattels personal. Wrongs affecting real rights are principally ouster or dispossession, trespass, and nuisance. These we shall proceed to notice in the order indicated, and, as occasion may arise, will specify some other wrongs not exactly referable to any one of the foregoing heads, yet, by no means, unimportant. Ouster, or dispossession, is a wrong or injury that carries with it the amotion of possession: for thereby the wrong-doer gets into the actual occupation of land or realty, and obliges its rightful owner to seek his legal Ouster, or dispossession. remedy, in order to get possession of it, and also to recover damages for the injury sustained. And here the reader will distinguish between the right of possession and the right of property in relation to land, hereditaments and tenements; for this distinction is material with a view to discerning the classification and nature of some real actions, now abolished, at which we purpose very briefly and cursorily to glance. (b) 19 & 20 Vict. c. 108, s. 68; 23 & 24 Vict. c. 126, s. 22. (c) 30 & 31 Vict. c. 142, s. 13. (d) 19 & 20 Vict. c. 108, s. 65. In the times of our Saxon ancestors, the right of possession seems only to [* 267] have been recoverable by writ of entry (a), which was commonly brought where the tenant, though not entitled, had entered, without fraud or tort, into possession of land, as by the deed or consent of one who himself either came into possession of such land unlawfully, or had but a particular or defeasible estate in it. This writ was termed a writ of entry because it not only spoke of the entry of the tenant, but likewise showed for what reason the possession ought not to be detained from the demandant (b). The possessory action thus initiated was usually brought in the county court; and we may observe that the proceedings in such an action were not then so tedious when that court was held, and process issued from it and was returnable therein at the end of every three weeks, as they became after the Conquest, when all causes were drawn into the king's courts, and process issued only from term to term; which was found exceedingly dilatory, being at least four times as slow as it had before been. And hence a new remedy was invented in many cases, to do justice to the people, and to determine the right to the possession of land in the proper county, and by the king's judges. This was the remedy by assize, which was called by statute Westminster 2, 13 Edw. 1, c. 24, festinum remedium, in comparison with that by a writ of entry; it not admitting of many dilatory pleas and proceedings, to which other real actions were subject. The writ of assize is said to have been invented by Glanvil, chief justice to Henry II. (c); and, if so, may have owed its introduction to the parliament held at Northampton in the twenty-second year of that prince's reign; when justices in eyre were appointed to go round the kingdom in order to take these assizes: and the assizes themselves were clearly pointed out and [* 268] described (d). As * writ of entry was a real action, which disproved the title of the tenant by showing the unlawful commencement of his possession; so an assize was a real action, which proved the title of the demandant merely by showing his or his ancestor's possession (f); and these two remedies were in other respects so much alike, that a judgment or recovery in one of them was a bar against the other; so that when a man's possession had been once established by either of these possessory actions, it could never have been disturbed by the same antagonist in any other of them. The word assize, derived by Sir Edward Coke (g) from the Latin assideo, to sit together, signified originally, the jury who tried the cause, and sat together for that purpose. By a figure it was afterwards made to signify the court or jurisdiction, which summoned this jury together by a commission of assize, or ad assisas capiendas; and hence the judicial assemblies held by commission from the crown, as well to take writs of assize as to try causes at nisi prius, were termed in common speech the assizes. By another somewhat similar figure, the name assize was also applied to the action for recovering possession of land: for the reason, says Littleton (h), why such writs at the beginning were (a) Gilb. Ten. 42. (b) Booth, Real Actions, 2nd ed. 172. (c) Mirror, c. 2, s. 25. (d) Id. s. 9. Si dominus feodi negat hæredibus defuncti saisinam ejusdem feodi, justitiarii domini regis faciant inde fieri recognitionem per xii legales homines, qualem saisinam defunctus inde habuit, die quâ fuit vivus et mortuus; et, sicut recognitum fuerit, ita hæredi bus ejus restituant. S. 10. Justitiarii domini (f) Finch, L. 284. called assizes, was, that in them the sheriff was ordered to summon a jury, or assize; which was not expressed in any other original writ (i). * This remedy, by writ of assize, was only applicable to two species of injury by ouster, viz. abatement (k), and a novel (or recent) disseisin (1). [* 269] If the abatement happened upon the death of the demandant's father or mother, brother or sister, uncle or aunt, nephew or niece, the remedy was by an assize of mort d'ancestor. The writ directed the sheriff to summon a jury or assize, who were to view the land in question, and recognise whether such ancestor were seised thereof on the day of his death, and whether the demandant were the next heir: soon after which the judges came down by the king's commission to take the recognition of assize: when, if these points were found in the affirmative, the law immediately transferred the possession from the tenant to the demandant. * In an assize of novel (or recent) disseisin (m), as in that of mort [* 270 ] d'ancestor just mentioned, the demandant's possession must have been shown. In this action a complaint was made by the demandant of the disseisin committed, in terms of direct averment; whereupon the sheriff was commanded to reseize the land and all the chattels thereon, and keep the same in his custody till the arrival of the justices of assize; and in the meantime to summon a jury to view the premises in question, and make recognition of the assize before the justices. At which time the tenant might plead either the general issue or any special plea. And if, upon the general issue, the recognitors found an actual seisin in the demandant, and his subsequent disseisin by the tenant; he had judgment to recover his seisin, and damages for the injury sustained: this being the only case in which damages were recoverable in a possessory action at the common law (n); the tenant being in other cases allowed to retain the intermediate profits of the land, to enable him to perform the feudal services appertaining to it; though costs and damages were annexed to (i) Co. Litt. 159. (k) The term "abatement was a figura tive expression to denote that the rightful possession or freehold of the heir or devisee had been overthrown by the intervention of a stranger. An abatement being where a person had died seised of an inheritance, and before the heir or devisee entered, a stranger having no right of entry got possession of the freehold: this entry of him was called an abatement, and he himself was denominated an abator. Finch, L. 195. Such abatement of a freehold was somewhat similar to an immediate occupancy in a state of nature, which is effected by taking possession of the land the same instant that the prior occupant by his death relinquishes it. But this, however agreeable to natural justice, considering man merely as an individual, is diametrically opposed to the law of society, and particularly to the law of England: which, for the preservation of public peace, has prohibited as far as possible all acquisitions by mere occupancy: and has directed that lands, on the death of the present possessor, should immediately vest either in some person, expressly named and appointed by the deceased, as his devisee; or, on default of such appointment, in such one of his next VOL. II.-27 relations as the law has selected and pointed out as his natural representative or heir. The entry therefore of a mere stranger by way of intervention between the ancestor and heir or person next entitled, which kept the heir or devisee out of possession, was regarded as one of the highest injuries to the rights of real property. (Disseisin is a wrongful putting out of him who is seised of the freehold. Disseisin may be effected either in corporeal or incorporeal inheritances. Disseisin of a thing corporeal, as of a house, or land, is by entry and actual dispossession of the freehold; as if a man enters either by force or fraud into the house of another, and turns, or at least keeps him out of possession. Disseisin of an incorporeal hereditament cannot be an actual dispossession: for the subject itself is neither capable of actual bodily possession, nor dis possession; but is in general nothing more than a disturbance of the owner in the means of coming at, or enjoying it. (m) Which name was originally given to this proceeding, because the disseisin must have been since the last eyre or circuit of the justices, which happened once in seven years, otherwise the action was gone. (n) Bract. 187; Stat. Marlbr. c. 16. many other possessory actions by the statutes of Marlbridge, 52 Hen. 3, c. 16, and of Gloucester, 6 Edw. 1, c. 1. In these possessory actions there was a time of limitation settled, beyond which no man should avail himself of the possession of himself or his ancestors, or take advantage of the wrongful possession of his adversary. For, if he were negligent for a long and unreasonable time, the law refused afterwards to lend him any assistance, to recover the possession merely; both to punish his neglect (nam leges vigilantibus, non dormientibus subveniunt), and also because it was presumed that the supposed wrongdoer had in such a length [*271] of time procured a legal title, otherwise he would sooner have been sued. By these several possessory remedies the right of possession might formerly have been restored to him who had been 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 subsist in another man. For, as one man may have the possession, and another the right of possession, which was recoverable by a possessory action; so one man might have had the right of possession, and so might not have been liable to eviction by any possessory action, and another might have had the right of property, which could not have been otherwise asserted than by the great and final remedy of writ of right (o), or such correspondent writs as were in the nature of a writ of right. The writ of right was in its nature the highest writ in the law (p), and lay only for an estate in fee-simple, and not for him who had a less estate. This writ lay concurrently with any other real action, in which an estate of fee-simple might be recovered; and also lay after it, being as it were an appeal to the mere right, when judgment had been had as to the possession in an inferior possessory action (q). But though a writ of right might have been brought, where the demandant was entitled to the possession, yet it rarely was advisable to bring it in such a case, since a more expeditious and easy remedy was to be had, without meddling with the property, by proving the demandant's own, or his ancestor's, possession, and an illegal ouster, in one of the possessory actions. But in case the right of possession had been lost by length of time, or by judgment against the true owner in one of these inferior suits, there was no other choice. The writ of right was then the only remedy that could be [* 272] had, and was of so forcible a nature, that it overcame all obstacles, and cleared all objections that might have arisen to cloud and obscure the title, for, after issue once joined in a writ of right, the judgment was absolutely final; so that a recovery had in this action might have been pleaded in bar of any other claim or demand. The pure, proper, or mere writ of right lay only, we have said, to recover land in fee-simple, unjustly withheld from the true proprietor. But there were also some other writs which were said to be in the nature of a writ of right. The writ of right was brought, according to circumstances, either in the court baron of the lord of whom the lands were holden, or in the king's court; (0) This writ when brought by the issue in tail, or by the reversioner or remainderman after the determination of an estate tail, was called a formedon. (p) F. N. B. 1. and in the progress of this action the demandant alleged some seisin of the lands and tenements in himself, or else in some person under whom he claimed, and then derived the right from the person so seised to himself; to which the tenant might have answered by denying the demandant's right, and averring that he had more right to hold the lands than the demandant had to demand them: and, this right of the tenant being shown, it then put the demandant upon the proof of his title: in which, if he failed, or if the tenant had shown a better, the demandant and his heirs were perpetually barred of their claim; but if the demandant could make it appear that his right was superior to the tenant's, he recovered the land against the tenant and his heirs for ever; though even this writ of right, however superior to any other, could not have been sued out at any distance of time. Real actions for the recovery of land having, long before the passing of the statute 3 & 4 Will. 4, c. 27, become almost entirely disused (r), were by section 36 of that act* altogether abolished (s); so that the action of eject[* 273] ment is now the only direct mode of procedure for trying the title to real property, although trespass is sometimes made indirectly available for that purpose. (566) (r) There is a modern instance of a writ of right in Davies v. Lowndes, 1 Bing. N. C. 597, where the form of the proceedings may be seen. (8) The writs of dower unde nihil habet, and right of dower, however, are excepted in the above section. (566) None of the common-law actions for the recovery of land are retained in the United States, except the action of ejectment, or as it is sometimes termed, writ of entry, and real action. And by statutes, in most of the States, the proceedings in this action have been so simplified and divested of all cumbrous fictions as to leave but slight resemblance to the ancient form of the remedy. As to the nature of these changes, the statutes of the particular State should be consulted on the subject. Among the established rules universally applicable in the several States is the one that the plaintiff must show a possessory right, in order to maintain the action. Williams v. Hartshorn, 30 Ala. 211; Heffner v. Betz, 32 Penn. St. 376; Batterton v. Yoakum, 17 Ill. 288. He must recover on the strength of his own title, and cannot, in general, rely upon the weakness of the defendant's title. Webster v. Hill, 38 Me. 78; Bruce v. Mitchell, 39 id. 390; State v. Stringfellow, 2 Kan. 263; Stuart v. Dutton, 39 Ill. 91; Stehman v. Crull, 26 Ind. 436; Woodworth v. Fulton, 1 Cal. 295; Hammond v. Inloes, 4 Md. 138; Cunningham v. Dean, 33 Miss. 46; Layman v. Whiting, 20 Barb. 559. Where both parties claim title from the same person the plaintiff is not bound to establish the absolute title of that person; but proof of prior possession in him and the plaintiff is sufficient. Pollock v. Maison, 41 Ill. 516; Turner v. Reynolds, 23 Penn. St. 199; Merchants' Bank v. Harrison, 39 Mo. 433; Paschal v. Acklin, 27 Tex. 173; Gantt v. Cowan, 27 Ala. 582; Miller v. Surls, 19 Ga. 331. The general rule, that an equitable estate will not sustain ejectment (see Thompson v. Lyon, 33 Mo. 219; Emeric v. Penniman, 26 Cal. 122; Peck v. Newton, 46 Barb. 173), has been extensively modified in the United States. Thus, under the practice in California, possession, with an equitable title, is as good as a legal title. Morrison v. Wilson, 13 Cal. 494. See Cadiz v. Majors, 33 Cal. 288; Seaton v. Son, 32 id. 481. And so in Pennsylvania. Myers v. Hill, 46 Penn. St. 9; Deitzler v. Mishler, 37 id. 82. An equitable title also constitutes a defense to the action of ejectment in many of the States. See, as to New York, Carpenter v. Ottley, 2 Lans. 451; Dewey v. Hoag, 15 Barb. 365; Wisconsin, Prentiss v. Brewer, 17 Wis. 635; Missouri, Hayden v. Stewart, 27 Mo. 286; Kentucky, Petty v. Malier, 15 B. Monr. 591; Iowa, Penny v. Cook, 19 Iowa, 538. See Blun v. Robertson, 24 Cal. 146; Downer v. Smith, id. 124. The numerous technicalities in pleading, which incumbered the old action of ejectment have all been swept away by statutory enactments; and the action is now, in most cases, commenced by filing a declaration or complaint against the party in possession, generally |