Law, Book 4 · Chapter 4
CHAP. 4.
Of Reall Actions.
THeſe Writs concerning Common pleas are Reall or Perſonall. And Lit. 116.they both againe are precipes, or Si fecerit te ſecurum.
A precipe is that which willeth the Sherife to command the defendant to do ſomewhat in certaine that the plaintife ſueth for, which if he do not, then to ſerue the firſt proceſſe. The forme is, Praecipe A. quod reddat B. &c. Et niſi fecerit, &c, tunc ſomon', &c. And is a praecipe quod reddat which lyeth for things in render. As of reall things, land and ſuch other things in demeſne, rent, corody, &c. of perſonall things, mony, goods deteined, and the like. A praecipe quod faciat which lyeth for things not in render, whether they lye in Feaſaunce as a writ de conſuetudinibus et ſeruities, Secta ad molendium, &c. or in ſufferance, as a quod permittat, or in other things of any ſuch like nature.
A Si fecerit te ſecurum, is that which willeth the firſt proceſſe to be ſerued without more a doe. The forme is, Si A. fecerit te ſecurum de clamore ſuo proſequendo tunc ſumon', &c.
Reall actions where a freehold ſhall be 10. E. 9. 23.recouered are poſſeſſory or in the right.
Poſſeſſory which are to recouer a poſſeſſion, as all Aſſiſes, Writs of Ayell, Beſayell, and Coſinage.
In the right which are to recouer a poſſeſſion mixt with the right of all which examples do follow after.
And both theſe may either bee of a poſſeſſion F. N. B. 5 ….or right in himſelfe, or deſcended from his anceſtors: which we call aunceſtrell.
Reall actions in the right, are either founded vponupon the right, or for the meere right.
Statutes.
Merton cap. 8. Seiſin of ones anceſtor in a writ of right ſhall be from the time of Henrie the ſecond.
In a mort daunceſtor writ of Niefe and of entrie, from the laſt returne of king Iohn out of Ireland.
In an Aſſiſe of Nouell diſſeiſin, from Henrie the thirds firſt paſſage into Gaſcoygne.
Weſtm̄ 1. cap. 38. Seiſin of ones anceſtor in a Writ of right, ſhal be from the time of Richard the firſt.
In an Aſſiſe of Nouell diſſeiſin and nuper obijt, from Henrie the thirds firſt paſſage into Gaſcoigne.
In a mortdanceſtor coſinage, ayell, entry, and Writ of Niefe, from Henrie the thirds Coronation.
32. H. 8. cap. 2. Seiſin in a Writ of right ſhall be within lx. yeares.
In a mortdanceſtor, or in another poſſeſſory action, vponupon the poſſeſſion of his Aunceſtor or Predeceſſor, ſhall bee within l. yeares.
A Writ of the poſſeſſion of the plaintife himſelfe, ſhall be within xxx. yeares.
An Auowrie or Cogniſance, for rent, ſuit or ſeruices of the ſeiſin of his Anceſtor, or of his owne, ſhall be within xl. yeares.
Formedon in remainder, reuerſion, Scire facias, vponupon a fine, ſhall be within l. yeares after the title accrew. If a man preſcribe in land, rent, or ſuch like, of the poſſeſſion of his anceſtor, or predeceſſor, he ſhall alledge ſeiſin in them within lx. yeares next before the time of the preſcription, title, or claime.
1. Mar. cap. 5. The Statute of limitation of 33. H. 8. cap. 2. ſhall not extend to a writ of right of Aduowſon. Quare impedit, Iure patronatus, Aſſiſe de Darrein, preſentment, droit de gard of any lands holden by knight ſeruice, but the time of the ſeiſin alledged ſhall bee as it was at the Common Law.
Theſe kind of reall actions, viz. where the freehold ſhall be recouered, lye onelyonly againſt the tenant of the Freehold. Therefore Lit. 115.a releaſe of all actions reals, is no plea, vnleſſe he were Tenant of the Freehold at the time of the releaſe, for elſe hee had no cauſe of any ſuch action againſt him. Neither Old tenures fol. 2.is any ſuch action maintenable againſt leſſee for yeares, for he hath not the Freehold. Nor the diſſeiſee cannot hauehave a praecipe quod reddat againſt the diſſeiſor, which is parnor of the profits for yeares onelyonly, notwithſtanding 6 E. 6. Pl. 87.the Statute, becauſe by the Common Law, no action lyeth againſt 4. E▪ 4. 32.him. And for this cauſe alſo, non tenure of the whole, or though it be but of parcell of the thing demanded. Ioynttenancie with one not named in the Writ. Entiertenancie of the whole, or ſeuerall tenancie of parcel, 19. H 6. 32. 22. H 6. 12.when the Writ is brought againſt two or more, are good pleas in abatement of the (a) 45 E. 3. 5.Writ.(b) 37 H 6 8. 27. H. 8. 30.
Statutes.
25 E 3 cap 16. Non tenure ſhall not abate the writ, but onelyonly for the quantitie.
37 E. 3. cap 17. No writ ſhall be abated by knowledgement of villenage, if the demaundant or plaintife will auerre that hee that alledged the exception was free, day of the writ purchaſed. With the freholder, may be ioyned in action, any hauing title to enter: as the morgagor with the morgagee, 41. E. 3. 16.the Lord with his villeine, but not the diſſeiſee with his diſſeiſor.