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St. 52 Hen. III., ST. OF MARLEBRIDGE (1267), c. 29. It is provided also, That if those alienations (whereupon a writ of entry was wont to be granted) hap to be made in so many degrees, that by reason thereof the same writ cannot be made in the form beforetime used, the plaintiffs shall have a writ to recover their seisin, without making mention of the degrees, into whose hands so ever the same thing shall happen to come by such alienations, and that by an original writ to be provided therefor by the Council of our Lord the King.
Co. Lit. 238 b.“ Writ of entry sur disseisin.” Breve de ingressu super disseisinam. This writ lieth only upon a disseisin made to the demandant or to some of his ancestors, and of this writ there be four kinds. The first is a writ that lieth for the disseisee against the disseisor upon a disseisin done by himself, and this is called a writ of entry in the nature of an assise. The second is a writ of entrie sur disseisin en le per, whereof Littleton here speaketh, for the heir by descent is in the per by his ancestor: so it is if the disseisor make a feoffment in fee, a gift in tail, or a lease for life, for they are in the per by the disseisor. The third is a writ of entrie sur disseisin en le per & cui ; as where A. being the feoffee of D. the disseisor maketh a feoffment over to B. there the disseisee shall have a writ of entry sur disseisin of lands, &c. in which B. had no entry but by A. to whom D. demised the same, who unjustly and without judgment disseised the demandant. These are called gradus, degrees, which are to be observed, or else the writ is abatable ; for sicut natura non facit saltun, ita nec lex.
The fourth is a writ of entrie sur disseisin in le post, which lieth when after a disseisin the land is removed from hand to hand beyond the degrees; and it is called in le post, because the words of the writ be, post disseisinam quam D, injuste, &c. fecit, &c.?
Proceedings on an Action of Trespass in Ejectment, by Original, in
the King's Bench.
Sect. 1. The Original Writ.
Gereland King, Defen Richard Smith shall gadges William
George the Second, by the grace of God, of Great Britain, France, and Ireland King, Defender of the Faith, and so forth, to the Sheriff of Berkshire, greeting. If Richard Smith shall give you security of prosecuting his claim, then put by gage and safe pledges William Stiles, late of Newbury, gentleman, so that he be before us on the morrow of AllSouls, wheresoever we shall then be in England, to show wherefore with force and arms he entered into one messuage, with the appurtenances, in Sutton, which John Rogers, Esquire, hath demised to the
1 By St. 3 & 4 Wm. 4, c. 27, § 36, no real or mixed action, "except a writ of right of dower, or writ of dower unde nihil habet, or a quare impedit or an ejectment," is to be brought after the year 1834.
aforesaid Richard, for a term which is not yet expired, and ejected him from his said farm, and other enormities to him did, to the great damage of the said Richard, and against our peace. And have you there the names of the pledges and this writ. Witness ourself at Westminster, the twelfth day of October, in the twenty-ninth year of our reign. Pledges of prosecution,
nr John Doe.
" | Richard Roe. The within-named William Stiles ( John Den. is attached by pledges,
Richard Fen. Sect. 2. Copy of the Declaration against the casual Ejector, who gives Notice
thereupon to the Tenant in Possession.
Michaelmas, the 29th of King George the Second. Berks, , William Stiles, late of Newbury in the said county, gen
to wit. S tleman, was attached to answer Richard Smith, of a plea, wherefore with force and arms he entered into one messuage, with the appurtenances, in Sutton in the county aforesaid, which John Rogers, Esquire, demised to the said Richard Smith for a term which is not yet expired, and ejected him from his said farm, and other wrongs to him did, to the great damage of the said Richard, and against the peace of the Lord the King, &c. And whereupon the said Richard by Robert Martin his attorney complains, that whereas the said John Rogers, on the first day of October, in the twenty-ninth year of the reign of the Lord the King that now is, at Sutton aforesaid, had demised to the same Richard the tenement aforesaid, with the appurtenances, to have and to hold the said tenement, with the appurtenances, to the said Richard and his assigns, from the Feast of Saint Michael the Archangel then last past, to the end and term of five years from thence next following and fully to be complete and ended, by virtue of which demise the said Richard entered into the said tenement, with the appurtenances, and was thereof possessed ; and the said Richard being so possessed thereof, the said William afterwards, that is to say, on the said first day of October in the said twenty-ninth year, with force and arms, that is to say, with swords, staves, and knives, entered into the said tenement, with the appurtenances, which the said John Rogers demised to the said Richard in form aforesaid for the term aforesaid, which is not yet expired, and ejected the said Richard out of his said farm, and other wrongs to him did, to the great damage of the said Richard, and against the peace of the said Lord the King; whereby the said Richard saith, that he is injured and damaged to the value of twenty pounds. And thereupon he brings suit, &c.
Martin, for the plaintiff.
Pledges of Prosecution, 3
7 Richard Roe. Mr. GEORGE SAUNDERS, —
I am informed that you are in possession of, or claim title to, the premises mentioned in this declaration of ejectment, or to some part thereof; and I, being sued in this action as a casual ejector, and having no claim or title to the same, do advise you to appear next Hilary Term in his Majesty's Court of King's Bench at Westminster, by some attorney of that court, and then and there, by a rule to be made of the same court, to cause yourself to be made defendant in my stead; otherwise I shall suffer judgment to be entered against me, and you will be turned out of possession.
Your loving friend,
WILLIAM STILES. 5th January, 1756.
Sect. 3. The Rule of Court. Hilary Term, in the twenty-ninth Year of King George the Second. Berks, 1 It is ordered by the court, by the assent of both parties,
to wit, and their attornies, that George Saunders, Gentleman, may be made defendant, in the place of the now defendant, William Stiles, and shall immediately appear to the plaintiff's action, and shall receive a declaration in a plea of trespass and ejectment of the tenements in question, and shall immediately plead thereto Not Guilty: and, upon the trial of the issue, shall confess lease, entry, and ouster, and insist upon his title only. And if upon the trial of the issue, the said George do not confess lease, entry, and ouster, and by reason thereof the plaintiff cannot prosecute his writ, then the taxation of costs upon such non pros. shall cease, and the said George shall pay such costs to the plaintiff, as by the Court of our Lord the King here shall be taxed and adjudged, for such his default in non-performance of this rule; and judgment shall be entered against the said William Stiles, now the casual ejector, by default. And it is further ordered, that if upon the trial of the said issue a verdict shall be given for the defendant, or if the plaintiff shall not prosecute his writ upon any other cause than for the not confessing lease, entry, and ouster as aforesaid, then the lessor of the plaintiff shall pay costs, if the plaintiff himself doth not pay them.
By the Court. Martin, for the plaintiff, Newman, for the defendant.
Note. — The above form of beginning an action of ejectment is taken from the Appendix to the Third Volume of Blackstone's Commentaries. The later proceedings are omitted.
LIT. 88 73, 74, 78. Tenant by copy of court roll is, as if a man be seised of a manor within which manor there is a custom, which hath been used time out of mind of man, that certain tenants within the same manor have used to have lands and tenements, to hold to them and their heirs in fee simple, or fee tail, or for term of life, &c. at the will of the lord according to the custom of the same manor.
And such a tenant may not alien his land by deed, for then the lord may enter as into a thing forfeited unto him. But if he will alien his land to another, it behooveth him after the custom to surrender the tenements in court, &c. into the hands of the lord, to the use of him that shall have the estate, in this form, or to this effect.
A. of B. cometh into this court, and surrendereth in the same court a mease, &c. into the hands of the lord (in manus domini), to the use of C. of D. and his heirs, or the heirs issuing of his body, or for term of life, &c. And upon that cometh the aforesaid C. of D. and taketh of the lord in the same court the aforesaid mease, &c. To have and to hold to him and to his heirs, or to him and to his heirs issuing of his body, or to him for term of life, at the lord's will, after the custom of the manor, to do and yield therefor the rents, services and customs thereof before due and accustomed, &c. and giveth the lord for a fine, &c. and maketh unto the lord his fealty, &c.
Tenants by the verge are in the same nature as tenants by copy of court roll. But the reason why they be called tenants by the verge, is, for that when they will surrender their tenements into the hands of their lord to the use of another, they shall have a little rod (by the custom) in their hand, the which they shall deliver to the steward or to the bailiff according to the custom of the manor, and he which shall have the land shall take up the same land in court, and his taking shall be entered upon the roll, and the steward or bailiff according to the custom shall deliver to him that taketh the land the same rod, or another rod, in the name of seisin ; and for this cause they are called tenants by the verge, but they have no other evidence but by copy of court roll.
Read Digimo on Real Prof
USES AND TRUSTS.1
USES BEFORE ST. 27 HEN. VIII. c. 10.
Keilw. 42, pl. 7 (1502). Vavasour, J., said that the subpæna commenced in the time of Edward III. ; but this was always against the feoffee upon confidence himself, for against his heir the subpæna was never allowed until the time of Henry VI., and in this point the
law was changed by Fortescue, C. J.: Stogave foutler St. 1 Rich. III. (1483), c. 1. Forasmuch as by privy and unknown new these time feoffments, great unsurety, trouble, costs, and grievous vexations daily o sul dile grow among the King's subjects, insomuch that no man that buyeth any
lands, tenements, rents, services, or other hereditaments, nor women that have jointures or dowers in any lands, tenements, or other hereditaments, nor men's last wills to be performed, nor leases for term of life, or of years, nor annuities granted to any person or persons for their services for term of their lives or otherwise be in perfect suretr, nor without great trouble and doubt of the same, because of the said privy and unknown feoffments : (2) For remedy whereof, be it ordained, established, and enacted, by the advice of the Lords Spiritual and Temporal, and by the Commons in this present Parliament assembled, and by authority of the same, that every estate feoffment, gift, release, grant, leases and confirmations of lands, tenements, rents, services, or hereditaments, made or had, or hereafter to be made or had by any person
1 On Equity Jurisdiction in general, see Langdell, Eq. Pl. $$ 36-45 ; Digby, Real Prop. (1st ed.) 244-247 ; (2d ed.) 285-287 ; (3d ed.) 276–279; Haynes, Outlines of Eq. 6-20.
2 On Uses before the Statute, see also Digby, Real Prop. c. 6; Leake, Digest Land Law, 99-102.
3 “The experience and practice of uses were not ancient, and my reasons why I think so, are these four: First, I cannot find in any evidence before King R. II. his time, the clause ad opus et usum, and the very Latin of it savoureth of that time ; for in ancient time, about Edw. I. and before, when lawyers were part civilians, the Latin phrase was much purer, as you may see partly by Bracton's writing, and by ancient patents and deeds, and chiefly by the register of writs, which is good Latin, whereas this phrase ad opus et usum, and the words ad opus, is a barbarous phrase, and like enough to be the penning of some chaplain that was not much past his grammar, where he had found opus and usus coupled together, and that they did govern an ablative case ; as they do indeed since this Statute, for they take away the land and put them into a conveyance." Bacon, Uses, 22.