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tlicfe are difpTtclied at tlie general affifes, along witli the 

 eommilTioii of oyer and terminer, &c. 

 • This writ of aflife is faid to liave been invented by Glan- 

 vil, chief jullice to Henry II ; and if fo, it feenis to owe 

 its introduction to the parliament held at Northampton, in 

 the twenty-fecond year of that prince's rtign ; when juftices 

 in oyer were appointed to go round the kingdom, in order 

 take thcfe affiles ; and the affifes themfelvcs (particularly 

 thofe of mart d'ancejlor and novel cl'ijp.efm) were clearly 

 pointed out and defcribed. As a writ of entry is a real 

 aftion, which d'fproves the title of the tenant, by fiiewing 

 the unlawful commencement of his pofTeffion, fo an affife is 

 a real aAion, which proves the title of the demandant, 

 merely by fhewing his or his anceftor's poffeffion ; and 

 thefe two remedies are in all other refpefts fo totally alike, 

 that a judgment on recovery in one is a bar againft the other; 

 fo that when a man's poffeffion is once eftablifhed by either 

 of thefe poffcffoiy actions, it can never be difturbed by the 

 fame antagoniil:, in any other of them. 



This remedy by writ of affife was called by ftat. Weftm. 2. 

 13 Edw. I. c. 24. fejlimim remediiim, in coniparifon uith 

 that by a writ of entry ; as it did not admit of many dila- 

 toiy pleas and proceedings, to which other real aftions are 

 fubjedt ; and it is only applicable to two fpccies of injury 

 by oufter, viz. abater.n-ut, and a recent or no'jel dijje'ifin. 



Assise of Mort d' Ancejlor, or death of one's anceftur, is 

 a writ that lies when father or mother, brother or filler, 

 uncle or aunt, nephew or niece, dies feifed of lands, tene- 

 ments, rents, &c. held in fee firnple ; and after their death, 

 a llranger abates. It is good as well againft the abator, as 

 any other in poffeffion ; but it lies not againft brothers or 

 fillers, &c. where there is privity of blood between the 

 perfon profecuting and them. Co. Litt. 242. It muft alfo 

 be brought within the time limited by the llatiite of limita- 

 tions, in fifty years ; or the right may be loft by negli- 

 gence. 



This writ directs the flieriff to fummon a jury or affife, 

 who (had view the land in queftion, and recognife whether 

 fuch anceftor were fcifcd thereof on the day of his death, 

 and whether the demandant be the next heir ; foon after 

 which, the judges come down by the king's commiffiini to 

 take the recognition of affife ; when, if thefe points are 

 found in the affirmative, the law immediately transfers the 

 poffeffion from the tenant to the demandant. F. N. B. 195. 

 Finch. L. 290. If the abatement happened on the death 

 of one's grandtather or grandmother, then an affife of mort 

 d'anceftor no longer lies, but a writ of " a\de," or " dc aiw;" 

 if on the death of the great grandfather or great grandmo- 

 ther, then a writ of '• befayle," or " de proavo ;" but if it 

 mounts one degree higher, to the " trifayh" or grandfather's 

 grandfather ; or if the abatement happened upon the death 

 of any collateral relation, other than thofe before mentioned, 

 the writ is called a writ of " /-ofmage," or " de confanguineo." 

 Finch. L. 266, 267. And the fame points ffiall be inquired 

 of in all thefe aftions " anceflrel" as in an affife of mort 

 d'anceftor, as they are of the fame nature (ftat. Weftm. 2. 

 13 Edw. I. c. 20.); though they differ in this point of form, 

 that thefe anceftrel writs (like all other writs of " prj'dpe") 

 exprefsly affert a title in the demandant (viz. the feifin of 

 the anceftor at his death, and his own right of inheritance) ; 

 the affife afferts nothing diredtly, but only prays an inqiiiry 

 whether thcfe points be fo. 2 Inft. 399. There is alfo an- 

 other anceftrel writ, denominated a " niiper oid/," to ella- 

 bliffi an equal divifion of the land in qucftion, where, on the 

 death of an anceftor, who has feveral heirs, one enters, and 

 holds the others out of poffeffion. F. N. B. 197. Finch. 

 L. 293. But a man is not allowed to have any of thcfe 



aftions ancef^.ixl for an abatement confequent on the death 

 of any collateral relation, beyond the fourth degree (Hale 

 on F. N. B. 221.), though in the lineal afccnt he may pro- 

 ceed !ti hijirdtum. It was always held to be law (Braftoi!, 

 I. 4. c. 13. J' 3. F. N. B. 196.), that where lands were dc- 

 vifable in a man's will by the cuftom of the place, there aa 

 affife of mort d'anceftor did not lie. For where lands were 

 fo devifable, the right of poffeffion could never be deter- 

 mined by a prccefj, which merely inquired concerning the 

 feil'in of the anceftor, and the heirfnip of the demandant. 

 Hence it may be re:'.fonable to conclude, that when the fta- 

 tute of wills, 32 Hen. VIII. c. 1. inade all focagc lands 

 devifable, an affife of mort d'anceftor no longer could be 

 brought of lands held in focage (i Leon. 267}; and that 

 now, fince the ftatute iz Car. II. c. 24. which converts all 

 tenures, a few only excepted, into free and common focage, 

 no affife of mort d'anceftor can be brought of any lands in 

 the kingdom ; but that, in cafe of abatement?, recourfc 

 muft be properly liad to the writs of entry. Bl. Com. 

 vol. iii. p. 187. 



Tiiefe writs, however, are now almoft obfolete, being in 

 a great meafure fuperfedcd by the a'?iion of ejeftment, which 

 anfwers almoft all the purpofes of real aclions, fome very 

 peculiar cafes excepted. 



Assise of Novel Di/Jejfn is an aflion of the fame nature 

 with the " q/J:fe of mort d'tmcellor,'' as in this the demandant's 

 poffeffion muft be fliewn. But in other points it is different, 

 particularly as it recites a complaint by the demandant of the 

 diffeifm committed in terms of direft averment; whereupon 

 the ftieriff is commanded to refeife the land, and all the 

 chattels thereon, and keep the fame in his cuftody till the 

 arrival of the juftices of affife (which, in faft, hath been 

 iifually omitted) ; a;id in the mean time to fummon a juiy 

 to view the premifes, and make recognition of the affife 

 before the juftices. F. N. B. 177. At which time the 

 tenant may plead either the general iffues, "nultort" " nul 

 d'ljfe'ifin" or any fpccial plea. And if, upon the general 

 iffue, the recognitors find an aftual feifin in the demandant, 

 and his fubfequent diffcifin by the, prefent tenant, he (hall 

 have judgment to recover his feilin, and damages for the in- 

 jury luftained. 



This is called " novel diffeifm" becaufethe juftices in eyre 

 went their circuits from feven years to feven years ; and no 

 affife was allowed before them, which commenced before 

 the laft circuit, called an anntr.l affife ; and that which was 

 upon a diffeifin lince the laft circuit, an affife of novel or recent 

 diffeifin. Co. Litt. I53.^. 



This remedy lies where a tenant in fee-fimple, fee-tail, 

 or for term of life, is put out and diffeifed of his lands or 

 tenements, rents, common of pallure, common way, or of 

 an office of profit, toll, &c. Glanv. l.io. Reg. Orig. 197. 

 Affife lies for tithes, by ftat. 32 Hen. VIIl. c. 7. Cro. 

 Eliz. 559.; but not for an annuity, penfion, Sec. 



For preventing frequent and vexatious diffeifins, it is en- 

 afted by the ftatute of Merton, 20 Hen. III. c. 3. that if 

 a perfon 'diffeifed recover feifin of the land again by affife of 

 novel d'-Jfetfm, and be again diffeifed of the fame tenements 

 by the fame diffeifor, he ffiall have a writ of " re-JiJfeUln;" 

 and if he recover therein, the rc-diffcifor Ihall be impriioned. 

 And by the ftatute of Marlbergc, 52 Hen. VIIL c. 8. ffiall 

 alfo pay a fine to the king ; to which the ftatute Weftm. 2. 

 13 Edw. I. c. 26. hath fuperaddcd double damages to thg 

 party aggrie^d. In like manner, by the fame ftatute of 

 Merton, when any lands or tenements are recovered by affife 

 of " mort d'iineejlor," or other jury, or any judgment of 

 the court, if the party be afterwards diffeifed by the fame 

 perfon agaiuft whom judgment was obtained, he (hall have 



R 2 a writ 



