claims, has neglected to bring an action by writ of entry, writ of affife, either of mort d' ancestor or novel diffeifin, for the space of thirty years. And by 32. Hen. 8. c. 2. no perfons fhall have a writ of right of the poffeffion of his ancestor, but within fixty years after diffeifin complained of; Buller's N. P. nor of his own poffeffion but within thirty years. A claim or entry to prevent the limitation of this ftatute must be upon the land, unless there be some special reason to the contrary.

115.

Buller, 115.

F. N. B. 211.
217.255.
8. Co. 88.

5. A FORMEDON is a writ diftinguished into 3.Bl.Com.192. three fpecies; a formedon in the defcender, in the remainder, and in the reverter. The firft lies where a gift in tail is made, and the tenant in tail aliens the lands, or is diffeifed of them, and dies. The fecond lies where one giveth lands to another for life, or in tail, with remainder to a third perfon, in tail, or in fee, and he who hath the particular eftate dieth without iffue inheritable, and a ftranger intrudes upon him in remainder, and keeps him out of poffeffion. The third lies where there is a gift in tail, and afterwards, by the death of the donee or his heirs, without iffue of his body, the reverfion falls in upon the donor, his heirs, or affigns. By 21. Jac. 1. c. 16. all writs of formedon fhall be fued within twenty years next after the title or caufe of action firft defcended or fallen, except the perfon intitled be at the time of the faid writ firft defcendant, an infant, feme covert, &c. and then fuch perfon and his heirs may, notwithstanding the faid twenty years be expired, bring his action within ten years.

F. N. B. 7.

Co. Lit. 32.
Wood, 568.

6. A WRIT OF DOWER lies where a woman hath received only part of her dower, and demands the refidue against the fame tenant in the fame term, fhewing the right to recover fuch refidue. There is alfo a writ of dower unde nihil habet, where the wife hath received no part; as where a man having lands or tenements hath made no affurance thereof of any part to his wife, fo that

the

Co. Lit. 32.

The is driven to fue for it against the heir or his guardian. Damages in dower are given by the Bull.N.P.116. Statute of Merton, c. 1. but it extends lands whereof the hufband died feifed. fendant may plead to this writ, that the dant and fuppofed husband ne unques accouple Trin. 33. Geo.

in loial matrimonie."

upon

only to Yelv. 112. The de- 2. Saund. 331. Robins v.

deman- Crutchley,

2.

Finch, 29.

5. Co. 12.

7. A WRIT OF WASTE is alfo an action partly 3.Bl.Com.227. formed the Common Law, and partly upon Buller's N. P. 6. Edw. 1. c. 5. the Statute of Gloucefter; and may 19. be brought by him who hath the immediate eftate Dyer, 19. of inheritance in reverfion or remainder, against Lutw. 1547. the tenant for life, tenant in dower, tenant by Co. Lit. 158. 355. the courtefy, or tenant for and by years; Cro. Car. 414. 13. Edw. 1. c. 22. commonly called the Statute of 2. Inft. 403. Weftminster the Second, by one tenant in common of the inheritance against another, who makes wafte in the estate holden in common, which ftatute has been held to extend to joint-tenants, but not to coparceners.-Wafte is a mixed action; partly real, fo far as it recovers land; and partly perfonal, fo far as it recovers damages; for by the Statute of Gloucester, the plaintiff in an action of wafte is to recover the thing wafted, and treble 1.Ch.Rep.14. damages; but the ufual remedy for this injury is 2.Ch.Caf.32. by application to the court of Chancery.

3. Bl. Com. 438. 227.

120.

416.

8. ASSISE. Writs of affife are of two forts, Buller's N. P. novel diffeifin, and mort d' anceftor; and is applicable F. N. B. 195. to two fpecies of injury by oufter, viz. by abate- Finch. 290. ment, and a recent diffeifin. An affife of mort d' Co. Lit. 154. 1. Com. Dig. anceftor, or death of one's ancestor, lies where the abatement happened upon the death of the demandant's father or mother, brother or fifter, uncle or aunt, nephew or niece; and the writ directs the sheriff to fummon a jury, or affise, tơ view the land in queftion, and to recognize whether fuch ancestor were feifed thereof on the day of his death, and whether the demandant be the next heir. An affife of novel diffeifin, or recent diffeifin, is an Co. Lit. 153. b. action of the fame nature with that of mort d'anceftor,

Bb 2

2. Inft. 410.

inafmuch 406.

8. Co. 46.

1. Lev. 1.

2. Inft. 412.

410.

inafinuch as the demandant's poffeffion must be fhewn; but as the writ alledges the diffeifin 1.Com. Dig. pofitively committed, the fheriff is commanded to refeize the land, and all the chattels thereupon, and keep the fame in his cuftody till the arrival of the juftices of affize. Novel diffeifin must be founded upon a feifin in him who brings the writ, and therefore it is now rarely used for any thing beside the recovery of an office.

Wood's Inft.

566.

F. N. B. 32.

Co. Lit. 344
2. Inft. 356.
5. Com. Dig.

6. Co. 49.

376.

3.Bl.Com.247.

Prius, 122.

1

9. QUARE IMPEDIT is a poffeffory action, and lies when any one is difturbed by another in his right of advowfon, to present a clerk to a church when it is void. The patron of every living is bound to prefent within fix months after the church becomes void, or the right of presentation will lapfe to the bifhop; but if made within that time, the bifhop is bound to admit and inftitute the clerk, if found fufficient, unless the church be full, or there be notice of any litigation. The Buller's Nifi patron therefore, if the delay or refufal arifes from the bishop alone, as upon pretence of incapacity, or the like, brings this writ against the bishop, and he only is named in the writ; but if there be another prefentation fet up, then the pretended patron and his clerk are also joined in the writ; or it may be brought against the pretended patron and his clerk, leaving out the bishop; or against the patron only; but it is generally brought against all three; for if the bishop is left out, and the fuit is not determined till fix months are paft, the bishop is entitled to 2. Crompton's prefent by lapfe; but if he is named and made a Cro. Jac. 93. party to the fuit, no lapfe can poffibly accrue till the right is determined; and therefore it is always most advisable to make him a party. If the patron be left out, and the writ is only against the bishop and the clerk, the fuit is of no effect, and the writ fhall abate; for the right of the patron is the principal queftion in the cause. If the clerk be left out, and has received institution before the action brought, as is fometimes the cafe, the

Practice, 285.

Hob. 316. 7. Co. 25.

patron

patron plaintiff may recover the right of patron-1. Term Rep. age, but not the prefent turn; for he cannot in C. B. 418. have judgment to remove the clerk, unless he be made a defendant and party to the fuit, to hear what he can alledge against it; for which reafon it is the fafer way to infert them all three in the writ, Immediately on fuing out the quare impedit, if the plaintiff fufpects that the bifhop will admit the defendant's or any other's clerk, pending the fuit, he may have a prohibitory writ, called a ne admittas. If the bishop, after the receipt of a ne admittas, F. N. B. 311. admit any perfon, even though the right of the patron prefenting the perfon fo admitted may have been found in a jure patronatus (which is a proceeding in the ecclefiaftical court, to enquire which of two contending patrons have the right), the plaintiff, after he has obtained judgment in the quare impedit, may remove the incumbent, if the clerk of a ftranger, by a writ of feire facias, and alfo have a fpecial action against the bishop, called a quare incumbravit, to recover the prefentation, and F. N. B. 48. 5. Com. Dig. damages for the injury done him by incumbering 380. the church with a clerk pending the fuit. But if 'the bishop has incumbered the church by admitting the clerk before the ne admittas received, no quare incumbravit lies. The plaintiff in quare impedit muft fet out his title, and prove a prefentation in himself, his ancestors, or thofe under whom he claims; and fhew difturbance before action brought. The bifhop and the clerk ufually 1. Term Rep. difclaim all title, fave only, the firft as ordinary C. B. 376. 412, to admit and inftitute, and the other as prefentee of the patron, who is left to defend his own right; and upon failure, then the defendant must prove his right. If the right be found for the plaintiff on the trial, it must be further enquired, 1. If the church be full, and of whofe pretenta- See the Cafe tion. 2. Of what value the living is. 3. In cafe of plenarty, upon an ufurpation, whether fix 93, 94. Leach's calendar months have paffed between the avoid. edit.on. ance and the action; and if it be found that the plaintiff hath the right, and hath commenced his action in due time, he shall have judgment to re

Bb 3

cover

of Lancaster v. Lowe, Cro. Jac,

3. Bl. Com. 252.

F. N. B. 113.

3. Bl. Com.
256.

Skin. 609.
Finch, 256.

cover the presentation. Befides thefe poffeffory actions, there may be alfo had a writ of right of advowfon, a recovery in which may be pleaded in bar to a quare impedit. The clerk alfo, when in full poffeffion of the benefice, although he cannot have a writ of right, may have a writ in the nature of an affife, called a juris utrum, or the parfon's writ, to recover glebe, rent, tithes, &c. aliened by his predeceffor.

BESIDES thefe actions for the redress of civil injuries, there are criminal prolecutions relative to civil rights of which it will be proper to take

notice.

1. BY PETITION OF RIGHT, which is ufed where the King is in full poffeffion of any hereditaments or chattels, and the party fuggefts fuch a 7. St. Tr. 134 right as controverts the title of the crown; and this may be profecuted either in the Chancery or the Exchequer.

Skin. 608. 4. Co. 55.

3. Bl. Com.

262.

Buller, 210. 2. Inft. 282.

9. Co. 28. a.

Yelv. 191.
5. Com. Dig.
385.

Stra. 1151.

2. Burr. 869.

2. MONSTRANS DE DROIT, which is used where the right of the party, as well as the right of the crown, appears upon record; as where on an inqueft of office, intitling the King to lands, the whole matter is found by the jury fpecially, and entered on the record.

3. QUO WARRANTO is a writ in the nature of a writ of right for the King, against him who claims or ufurps any office, franchife, or liberty; for as the crown is the fountain of all power and jurifdiction, if any perfon or corporation take upon them to execute any office or jurifdiction without being legally authorised fo to do by the La. Ray-155 King's charter or act of parliament, the court of Cowp. 58. 75 King's Bench will call upon them, to fhew by what Dougl. 397. warrant or authority they claim to execute fuch 1. Term Rep. office or jurifdiction. The old method of doing 2. Term Rep. this was by writ of quo warranto, but of latter 3. Term. Rep. times the method has been by information in the nature of quo warranto; but by 4. & 5. Will. & Mary, c. 18. and 9. Ann. c. 20. fuch information cannot be filed without leave of the court.

7.20 453.

484.767.

300.

4. MANDAMUS

1