Stat. 21 Jac. 1. after his and their full age, discoverture, coming of sound mind, enlargement out of prison, or coming into this realm, or death,

take benefit of and sue forth the same, and at no time after the said ten years."

In construing this statute, it has been held, that where tenant in tail dies, leaving issue in tail a feme covert, who dies under coverture, leaving issue two sons, both infants, and the eldest attains twenty-one years, and dies without issue, leaving his brother under age, who does not sue out his writ of formedon within ten years after attaining twenty-one, and more than twenty years after the right first descended, the statute operates as a bar. (a) The ground of this decision is, that the period of ten years began to run on the elder brother attaining his full age, and was not stayed by the subsequent disability of the younger brother. In a very late case (b), it was held, that the twenty years limited by this statute begin to run when the title descends to the first heir in tail, and that each succeeding heir has no new right to sue within twenty years from the death of his predecessor. The issues in tail have no distinct and successive rights under this statute, but are barred like the heirs of estates in fee-simple. (c)

It was held by Lord Ellenborough (d), that the word death in the saving clause of this statute must mean and refer to the death of the person to whom the right first accrued, and whose heir the claimant is, and that the statute meant, that the heir of every person, to which person a right of entry had accrued during any of the disabilities there stated, should have ten years from the death of his ancestor, to whom the right first accrued during the period of disability, and who died under such disability, (notwithstanding the twenty years from the first accruing of the title to the ancestor should have before expired). Mr. Justice Lawrence also, in the same case, gave his opinion, that the ten years to the heir run from the death of the party dying under the disability. It appears, however, that it was not necessary in this case for the court to decide from what period the ten years should run, for more than ten years had elapsed from the time when the disability of the plaintiff ceased. In the case of Cotterell v. Dutton, the court was of opinion, that the heir

(a) Cotterell v. Dutton, 4 Taunt. 826.
(b) Tolson v. Kaye, 3 Br. and Bing.

217.

(c) Cotterell v. Dutton, 4 Taunt. 850, and see Sugd. Vend. and Purch. 332.

(6th edit.)

(d) Doe v. Jesson, 6 East, 84, recognized by Dallas, C. J. in Tolson v. Kaye, 3 B. and B. 224.

has ten years after the disability ceases, and not merely from Stat. 21 Jac. 1. the death of the ancestor who died under such disability, and that the ten years do not run at all while there is a continuance of disabilities. It is said, that this construction has been invariably adopted in practice. (a)

Though a person may be barred of one remedy by this statute, yet he may pursue any other remedy which afterwards accrues to him. Thus, where a tenant in tail discontinues for three lives, and the issue in tail is barred of his formedon by this statute, yet, upon the deaths of the three tenants for life, the issue in tail may enter. (b)

By statute 10 and 11 W. 3, c. 14, no fine, common recovery, or Stat. 10 and II judgment in action real or personal, shall be reversed or avoided, W. 3, c. 14. for any error or defect therein, unless the writ of error or suit for reversing such fine, recovery, or judgment, be commenced, or Writs of Error. brought and prosecuted with effect, within twenty years after such fine levied, recovery suffered, or judgment signed or entered of record. (c) It has been held under this statute, that a reversioner cannot have error after twenty years, though his title did not accrue until after the expiration of them, and, though error is brought in less than twenty years after the commencement of his title. (d)

This act gives five years in case of disability.

It has not been determined, whether this statute extends to a writ of deceit brought to reverse a recovery suffered in the king's court of lands held in ancient demesne. The late Mr. Serjeant Hill was of opinion, that it did extend to such a writ. (e)

Suits instituted by the crown are limited by statute 9 Geo. 3, 9 Geo. 3, c. 16. c. 16, to sixty years.

(a) See Sugd. Vend. and Purch. 334. (6th edit.)

(b) Hunt v. Bourne, 2 Salk. 422. Latw. 781. Com. Rep. 124. 1 Br. Parl. C. 53. S. C.

(c) Com. Dig. Temps. (G. 5.)

(d) Lloyd v. Vaughan, 2 Strange, 1257.

(e) 5 Cruise Dig. 604.

Of the Writ.

In general. THE writ in real actions is, as we have seen, either a præcipe quod reddat, a præcipe quod faciat, a præcipe quod permittat, or a pone or attachment, varying in its form according to the nature of the thing demanded, and the title of the demandant. The particular form, and the peculiar qualities of each writ, will be stated in the following pages, under the proper title of the action. In real actions the writ is original, and there must, therefore, be fifteen days in every case between the teste and return. (a)

Writ general

or special.

Writs quia timet.

Writs are said to be either general or special (b); general, where the particulars of the demand or of the demandant's title are disclosed in the count or declaration, and not in the writ; and special, where they are disclosed in the writ also. Thus, with regard to the particulars of the demand, in dower unde nihil habet, and in assize (c), the particular quantity of land which the demandant claims is not set out in the writ. In the first action, the tenant is commanded to render to the demandant her reasonable dower of the freehold which was of her husband; and, in the latter, the writ, after reciting that the plaintiff has complained of being unjustly disseised of his freehold in such a place, commands the sheriff to reseise the tenements, &c. In a writ of right on the contrary, the quantity of the land demanded is 'specified in the writ, and the tenant is commanded to render so many acres of meadow, and so many acres of pasture, &c.

There are certain writs in the realty which may be maintained in anticipation, and before any disturbance or damage has actually accrued, and these are denominated writs quia timet, as a warrantia charta before the plaintiff is impleaded, a writ of mesne before he is distrained, a curia claudenda before default of inclosure, and a ne injuste vexes before molestation. (d)

(a) There are, indeed, one or two exceptions to this rule, in actions not properly real, but relating to the realty, in which the writ may be either original or judicial, as in estrepement, 2 Inst. 328.

() Vin. Ab. Writ. (D.) Com. Dig.

Pleader. (c. 15.)

(c) Br. Ab. Brief, 348. Sparry's Case, 5 Rep. 61, a.

(d) Co. Litt. 100, a. and see post, under each of the writs.

In general.

Statement of

With regard to the statement of title the writ is in many actions general, while the count is special. Thus, in an action of waste, if the lease was made to husband and wife during the coverture, title. the lessor who brings waste against them may state in his writ, that they hold for term of life, but, in his declaration, he must shew how, and in what manner the lease was made. (a) So in a quare impedit, for a church donative, the writ is general, that the defendant permit the plaintiff to present to the church, but the particular title is stated in the count. (b) In the same manner, in some writs of entry, a title is allowed to be stated generally in the writ, which must be set out with particularity in the count, as in a cui in vita brought where the husband seised in right of his wife has aliened the lands; in this case, if the wife was seised in tail, it is not necessary to shew the seisin of the donor, and the making of the estate tail in the writ, but merely to say, "which she claims to her and the heirs of her body of the demise, which A. made to her, &c. ;" but the seisin of the donor, and the creation of the entail, must be shewn in the count. (c) In formedon, on the contrary, the demandant must set out his title in the writ as well as in the count. (d)

It seems, that whenever the demandant seeks to recover a fee-simple, he may say in his writ, quam clamat esse jus et hæreditatem suam, although he be in fact a purchaser. (e) But, when the demandant claims an estate tail or for life, these words ought not to be inserted (f); in such case, both the writ and count ought to be special, viz. that A. gave to B. for life, remainder to C. in tail whose cousin and heir the said D. is. (g)

The words by which hereditaments are to be demanded in a Demand. pracipe quod reddat are given in the Register (h), and are as follows:

Messuage, toft, mill, dovecot, garden, land, meadow, pasture, wood, heath, moor, juncary, marsh, alder, ruscary (¿), rent. The order in which these words are placed should be pré

(a) Litt. s. 381, and see Skeat v. Oxenbridge, Hob. 84.

(6) Co. Litt. 344, a. and see post. (c) Booth, 187, and see Skeat v. Oxenbridge, Hob. 84.

(d) Br. Ab. Omission 5, and see post. (e) Litt. s. 9. Co. Litt. 16, a. F. N. B. 191, D. 193, C. note (b). (f) F. N. B. 191, E.

C

(g) F. N. B. 191. E. note (a), but see Id. 191, A. Dyer, 101, a. Booth, 177, that the writ and count may be general.

(h) Reg. Br. 2, a. Booth, 2. F. N. B. 2, C.

(i) In some editions of F. N. B. piscary is put instead of ruscary. See Co. Litt. 5, a.

In general.

Venue.

served in the writ, for it is a rule, that the more worthy shall be placed before the less worthy; the general before the special; and the entire before the parts. Thus, land built upon is said to be more worthy than other land, because it serves for the habitation of man, and in that respect has the precedency to be demanded in a præcipe (a), but a writ has been adjudged good in which this order was not observed. (b)

The words in the register are not the only names by which hereditaments may be demanded. (c) In very early times land might be demanded by such names as bovata terræ, carucata terræ, jugum terræ, &c. (d) "Land covered with water" may be demanded in a præcipe (e), and so may an honor or a manor (ƒ), so also an office. (g) It appears, that a præcipe quod reddat cannot be maintained for a service which lies only in feasance, for the remedy is by writ de consuetudinibus et servitiis, by distress or by cessavit. (h) A hospital or chapel may be demanded by the name of a messuage (i); but a messuage cannot be demanded by the name of a tenement (k), or of a house. (1) Many things will pass in a grant by a name by which they cannot be demanded in a præcipe, though that which may be demanded in a præcipe, will pass by the same name in a grant. (m)

By statute 32 H. 8, c. 7, a præcipe quod reddat lies of tithes, pensions, or other ecclesiastical or spiritual profit, which by law have been made temporal, or admitted to abide in temporal hands. (n)

Every action for the recovery of the seisin or possession of land, must be brought in the county where the land lies (0), and so in mixed actions, and in actions relating to the realty, the venue is local. (p)