out prejudice to any question of right.' An inquest of neighbours is summoned to declare who it was that presented the last parson." SECTION 13. THE WRIT OF ENTRY. The lesser assizes were very limited in their scope, only furnishing a remedy against the disseisor and his tenant or alienee during the disseisor's lifetime, and to supplement these assizes the writ of entry, in its various forms, became necessary. "Generally speaking, it lay in favor of a person who, having possession of lands as tenant in fee, fee tail, or for life, is ousted therefrom; or having the right of possession is deforced therefrom, to restore him to the possession. As a remedy distinct and different from the writ of assize, it first appears as a writ of course in 1205 and 1224. Although anciently denied, it came to be a concurrent remedy with the writ of assize of novel disseisin, when it was brought against the original disseisor by the disseisee himself, in which case it was called a writ in the nature of an assize or writ of entry in de quibus. Its original use and distinctive features made it a remedy against one coming into possession without fraud or tort, as by the deed of a disseisor or of one who had but a particular or defeasible estate. But it came to be used when a disseisin was suffered by a demandant or his ancestor." 2 There were a large number of various forms of this writ, the most important being the following: "Writ of entry sur disseisin; where a disseisin had been suffered by the demandant or his ancestor. "Writ of entry sur alienation; as where the tenant Martin on Civil Procedure, Sec. 144. of a particular estate wrongfully aliens it, which operates as a deforcement of the reversioner. "Writ of entry sur intrusion. Where on the expiration of a preceding estate of freehold, a stranger wrongfully intrudes, by which he affects a deforcement of the reversioner. "Writ of entry sur abatement where on the death of the ancestor a stranger abates and deforces the heir. It seems to have been in this case a concurrent remedy with the writ or mort d'ancestor or writ of ayel. "Writ of entry ad terminum qui praeteriit. Where the owner of a freehold leases lands or tenements for life or years, and after the expiration of the term by efflux of time or surrender, the lessee or a stranger, either entering upon or continuing in, detains the possession from the lessor or his heirs, thereby effecting a disseisin by deforcement." SECTION 14. OTHER ANCIENT REAL WRITS. The writ of quare impedit was a possessory writ concerning the presentation to a benefice. The writ of waste was an action by the reversioner or remainderman against the tenant in possession who had misused the property. The writ of de ejectione firmae, lay in favor of the tenant for a term of years against anyone who had unlawfully interfered with his possession. The modern writ of ejectment grew out of this writ. SECTION 15. MODERN REAL ACTIONS. The modern real actions are much simpler and fewer in number than the ancient real writs. The important real actions at the present time are those of ejectment and forcible entry and detainer. The old real actions of entry, dower, and partition are retained in a very few states, while actions of disseisin, and of trespass to try title are each the method of trying disputed titles to land in a single state. In most of the states which have not adopted the code procedure, ejectment is the method to try a title to land. This action has been freed from most of the fictions which formerly surrounded it, and it is sufficient in most states to allege in the pleading of the plaintiff that he is entitled to possession of the land, describing it, and that the defendant is in possession and wrongfully withholds it from plaintiff; concluding with a prayer for recovery and damages. SECTION 17. FORCIBLE ENTRY AND DETAINER. The action of forcible entry and detainer is a summary proceeding to recover possession. This remedy was formerly incidental to a criminal proceeding, but is now a civil action entirely regulated by statutes in the different states. It is the action used by landlords to oust tenants, for non-payment of rent or other cause. • See statutes of several states. CHAPTER V. PERSONAL ACTIONS EX CONTRACTU. SECTION 18. DEBT. The action of debt is the oldest personal common law action. The field of the action of debt is broader than that of pure contract law and lies to enforce a legal duty created by contract, custom or record. There was, however, one great restriction upon the scope of this action, which was that the duty, which was the basis of the action, must be for the payment of a certain sum of money or for the delivery of a certain amount of ponderable or measurable chattels. In very early times, the action of debt was even broader than this, being used in action for the recovery of a specific article. An action of debt for this last purpose was known as an action of debt in the detinet, while other actions of debt were known as actions of debt in the debet et detinet. Actions of debt in the detinet soon branched off from this action and gave rise to the new action of detinue. "Evidences of the proprietary character of the action of debt are conspicuous throughout all its history, but this feature is more prominent in the early stages of its growth. It is plainly manifest in the wording of the early writ. The creditor complained that the debtor unjustly deforced him of the subject-matter of the debt, and the debtor was commanded that justly and without delay he render it to its owner. By the time of Bracton the word detains (detinet) had supplanted the word deforce as de scriptive of the wrongful exclusion of the owner from his property. As in the writ of right for land, the action was based on ownership; and the writ of debt has been aptly called the 'writ of right for money.' The analogy between debt and the proprietary action for land is shown in the further circumstance that in both there might be trial by battle; but the offer of proof by battle has not actually been found in actions of debt. "The proprietary character of the action being much more plainly marked in the detinet form of the action, it is not surprising to find that while the simple duty to pay a debt was originally conceived as an obligation so purely personal as to perish with the person, the duty to pay chattels did not so perish. Accordingly when the debtor died, the writ, in order to be maintainable, always had to be framed in the detinet solely, whether the debt was for money or chattels," 1 2 Debt was used in suits on sealed instruments, for penalties named in a lease for a fine due under custom, in suits on judgments, for the recovery of rent, and on rights of a quasi-contractional character.5 At common law the right of action for debt, except in cases of surety, was personal and transitory. It would not lie against a personal representative to recover a debt due from the estate of a deceased person, but would lie against the heir where the specialty evidencing the debt expressly binds the heir, and where the heir has funds. The two causes which brought about the disuse Street's Foundations of Legal Liability, Vol. III, p. 130-131. • Cibel vs. Hill, 1 Leon, 110. Y. B., 11, Hen. VII, 13, pl. 8. |