Lavv, or, a discourse thereof in foure bookes. Written in French by Sir Henrie Finch Knight, his Maiesties Serieant at Law. And done into English by the same author.

CHAP. 4.

Of Reall Actions.

THese Writs concerning Common pleas are Reall or Personall. And * 1.1 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 de∣mesne, rent, corody, &c. of personall things, mony, goods deteined, and the like. A prae∣cipe 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 wil∣leth the first processe to be serued without more a doe. The forme is, Si A. fecerit te se∣curum de clamore suo prosequendo tunc sum∣on', &c.

Reall actions where a freehold shall be * 1.2

recouered are possessory or in the right.

Possessory which are to recouer a pos∣session, as all Assises, Writs of Ayell, Be∣sayell, and Cosinage.

In the right which are to recouer a pos∣session mixt with the right of all which ex∣amples do follow after.

And both these may either bee of a pos∣session * 1.3 or right in himselfe, or descended from his ancestors: which we call aunce∣strell.

Reall actions in the right, are either founded vpon 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 Gas∣coygne.

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, en∣try,

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 posses∣sory action, vpon the possession of his Aun∣cestor 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, vpon 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 al∣ledged shall bee as it was at the Common Law.

These kind of reall actions, viz. where the freehold shall be recouered, lye onely a∣gainst the tenant of the Freehold. There∣fore * 1.4 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. Nei∣ther * 1.5 is any such action maintenable against lessee for yeares, for he hath not the Free∣hold. Nor the disseisee cannot haue a praeci∣pe quod reddat against the disseisor, which is parnor of the profits for yeares onely, not∣withstanding * 1.6 the Statute, because by the Common Law, no action lyeth against * 1.7 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, * 1.8 when the Writ is brought against two or more, are good pleas in abatement of the * 1.9 Writ. * 1.10

Statutes.

25 E 3 cap 16. Non tenure shall not a∣bate the writ, but onely for the quantitie.

37 E. 3. cap 17. No writ shall be abated by knowledgement of villenage, if the de∣maundant 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 en∣ter: as the morgagor with the morgagee, * 1.11 the Lord with his villeine, but not the dis∣seisee with his disseisor.

Notes

• * 1.1

  Lit. 116.
• * 1.2

  10. E. 9. 23.
• * 1.3

  F. N. B. 5 ••.
• * 1.4

  Lit. 115.
• * 1.5

  Old tenures fol. 2.
• * 1.6

  6 E. 6. Pl. 87.
• * 1.7

  4. E▪ 4. 32.
• * 1.8

  19. H 6. 32. 22. H 6. 12.
• * 1.9

  (a) 45 E. 3. 5.
• * 1.10

  (b) 37 H 6 8. 27. H. 8. 30.
• * 1.11

  41. E. 3. 16.