Of Writs of Right. Where applica ble. A WRIT of right properly lies where the demandant has only the Writ of right. right of property, the jus proprietatis, the jus merum, or mere right, as it has been called, and where his estate has been devested and put to a right. It is the only remedy where the owner of land in fee-simple has lost the possession and the right of possession, and is consequently barred of the inferior remedies which the law has provided. Thus, if a man be disseised, the law gives the disseisee the right of recovering his lands immediately, by entering upon the tortious possession of the disseisor, or by bringing a possessory action; if, however, he should neglect to pursue this right, and the disseisor should die, (having been in possession five years, as required by the statute, 32 H. 8, c. 35,) the heir of the disseisee, in consequence of the disseisor's acquiescence, and neglect to enter, acquires an apparent jus possessionis, or right of possession; for, as the possession is cast upon him by descent, which is an act of law, he shall not be deprived of it by the act of the negligent disseisee, but by process of law, and the disseisee is therefore driven to his writ of entry. Should he still neglect to pursue the latter remedy within the period limited by law, he must then resort to his jus proprietatis, and bring his writ of right. (a) Whenever a fee-simple is in dispute, a writ of right is a concurrent remedy with other real writs and mixed actions, but, as judgment after issue joined on the mere right is final, it is imprudent to bring it when a lower remedy would be equally effectual. There are several writs which are said to be in the nature of Writs in nawrits of right, as formedon in the descender, quo jure, ne injuste ture of writs vexes, de consuetudinibus et servitiis, quod permittat in the debet, secta ad molendinum, and writ of right of advowson. (b) of right. Writs of right properly so called, are either patent or close (c), Writs of right Writ of right. and are of four kinds: 1. The writ of right patent, which lies where the lands are held of the king as of some honor, manor, &c. (a), or of some other lord. 2. The writ of right quia dominus remisit curiam, which is a writ close, and is nothing more than the writ of right patent brought in the king's court instead of the lord's, by license of the latter. (b) 3. The præcipe in capite, which is also a writ close, and lies where the land is holden of the king ut de corona, and not ut de honore, &c. (c) 4. The writ of right patent in London of lands within the city. (d) To these writs of right may be added the writ of right close in ancient demesne, and the writ of right de rationabili parte, the writ of right of advowson, and the writ of right of dower. Right patent. Quia dominus remisit curiam. The writ of right patent for lands held of the king, as of an honor, &c. is directed to the king's bailiffs, or when the lands are held of the king in burgage to the mayor and sheriffs or bailiffs of the city or borough, as bailiffs or officers of the king. (e) Where the lands are held of some other lord, the writ ought to be directed to him; and, if such lord be out of the realm, then to his bailiff. (ƒ) The writ is in the nature of a commission to the lord or bailiff of the manor, that he do right. If the writ be brought in the court of a bishop, it is directed to him, but, if brought during the vacancy of the bishopric, of lands which are in the bishopric, and in the king's hands, by reason of the vacancy, it may be directed either to the king's bailiff, or to the bailiff of the bishop elect. (g) It is not usual at the present day to bring a writ of right patent in the lord's court. If brought there, it may be removed from thence by the demandant into the county court by tolt, and thence by pone into the Common Pleas, or the tenant for good cause shewn may remove it at once from the lord's court into the Common Pleas by recordari, or from the county court into the Common Pleas by pone, shewing cause in the writ. (h) The writ of right quia dominus remisit curiam is directed to the sheriff of the county where the lands lie. Formerly the lord was accustomed to grant a licence to his tenant to sue his writ of (a) See the distinction as to Tenures of the king, ut de corona, and ut de honore, &c. Mad. Bar. Ang. 163. Hargrave's Note. to Co. Litt. 77, a. (39), and 188, a. (118.) (b) F. N. B. 2 F. (d) F. N. B. 6 A. (e) F. N. B. 1 I. 6 D. (h) F. N. B. 3, 4. Booth 89, 90, 91. 2 Saund. 45, d. (note.) right in the king's court, or before the justices, as well after the Writ of right. writ purchased and returned into the Common Pleas as before, and the following clause was inserted at the end of the writ after the teste, Because A. (the chief lord of the fee,) hath thereupon remitted to us his court. If this clause was inserted in the writ, it was immaterial whether there was any letter from the lord proving his assent or not, and, if the tenant sued such a writ without licence, and recovered, such recovery appears to have been good. (a) In modern practice, the action is always commenced in the Common Pleas, by this writ, and even the words quia dominus remisit curiam are omitted. (b) The præcipe in capite is, as already stated, directed to the Precipe in casheriff of the county where the lands lie. It may be brought at pite. the present day, as well as the writ of right quia dominus remisit curiam, and is precisely the same in effect. (c) The writ of right in London is directed to the mayor and Right in sheriffs, for every pracipe quod reddat of lands or tenements in London. London shall be directed to the mayor and sheriff's jointly, but every other writ to the sheriffs alone. (d) This writ cannot be removed by tolt and pone, or recordari, like a writ directed to the lord of a manor. (e) If the tenant vouch a person in a foreign county, or plead a plea which cannot be tried in London, the record may be removed into the Common Pleas, and when the voucher or plea has been there decided, a procedendo may issue, commanding the mayor and sheriffs to proceed in the cause in London. (f) A writ of right can only be brought by a tenant in fee-simple, By whom and not by any one who has a less estate, as tenant in tail, in brought. frankmarriage, for life, &c. (g) A bishop or master of a hospital, who has the inheritance of the lands in himself, mayor and commonalty, or bailiffs and commonalty, may have it (h); but it does not lie for a parson, because he has not the absolute fee (i), and his highest remedy is a writ of juris utrum. (k) Nor for a prebendary, for he has not a higher estate than a parson. (1) A Writ of right. person who has a determinable or base fee, as where he has an estate to him and his heirs as long as I. S. shall have issue of his body, may maintain a writ of right, for he cannot have any other writ in the right, as a tenant in tail, or a parson may. (a) Seisin neces sary. Against whom. A writ of right may be maintained either on the seisin of the demandant, or of one of his ancestors, but such seisin must be an actual seisin, and not a mere seisin in law. (b) A purchaser therefore, who has never gained actual seisin, cannot bring a writ of right, for the seisin of him, from whom he purchased is of no avail. (c) It must be observed, however, that there is a distinction between the actual seisin here mentioned, and that which is necessary to make a possessio fratris, for, in the latter case, a more actual seisin is said to be requisite. (d) Thus, a seisin obtained by wrong, and defeated by the entry of the right owner, is sufficient to maintain a writ of right. (e) And, where lands are conveyed to A. for life, remainder to B. for life, remainder to the right heirs of A., and A. dies, and B. enters and dies, and a stranger intrudes, the heir of A. may have a writ of right on the seisin which A. had. (ƒ) So, if lands are given to A. and B., and the heirs of A., and A. dies, and the land is recovered against B., the heir of A. may have a writ of right for the whole. (g) So also if lands are given in tail the remainder to A. in fee, and the donee dies without issue, his wife privement enseint, and A. enters, and the issue is born, and enters upon A., and dies without issue, A. may maintain a writ of right on the seisin which was thus defeated. (h) Again, if lands be given in tail to A. the remainder to his right heirs, and A. dies without issue, his collateral heir may maintain a writ of right on the seisin which A. had when he occupied under the estate tail. (¿) The tenant in a writ of right must have a freehold at least, and therefore it must not be brought against tenant for years, or by elegit, statute merchant, or statute staple. (k) When brought against a tenant for life, or parson, the tenant ought not to join the mise upon the mere right, on account of the weakness of his estate. (1) And if tenant for life do so, it is a forfeiture of his estate. (a) But the tenant for life may, it is said, join the mise Writ of right. in a special manner, viz. that he has better right to hold for term of his life, the reversion to such a one. (b) Or he may at once pray in aid the reversioner or remainderman. (c) A writ of right lies in general for lands or tenements (d); For what. that is, for such things as may be demanded in a præcipe (e); but it does not lie for incorporeal hereditaments, as common, &c. (f) It lies also for rent service, but not, as it seems, for a rent-charge, or rent-seck. (g) on, &c. The time of limitation is thirty years on the demandant's own Proceedings seisin, and sixty on his ancestor's. The process in a writ of right is summons and grand cape before appearance; and petit cape after appearance. The demandant or tenant may be essoigned; view, voucher, aid prayer and receit lie. The trial is by the grand assize, when the mise is joined upon the mere right, or by a common jury, when issue is joined upon a collateral point; the trial may be either at bar, or at nisi prius. No damages or cost are recoverable. (h) demesne. The writ of right close in ancient demesne, or the petty writ of Writ of right right close, as it is sometimes called, lies for tenants who hold close in ancient lands or tenements in ancient demesne (i); but where the demandant sues for the manor itself, or for the demesne lands, parcel of the manor, which are not in the hands of a free tenant holding of the manor, he ought to bring his action in the Common Pleas. (k) The writ is directed to the lord of the manor, and the demandant may make protestation to pursue it in the nature of what real action he pleases, as of a proper writ of right, or of an assize of novel disseisin, writ of dower, &c.; and therefore it lies for tenant in fee-simple, fee-tail, for life, or in dower, &c. (1) And in that case the precept follows the nature of the process appropriate to such writ. (m) |