disseisin than that which we are endeavouring to explain, and
the thought that violent self-help is a contempt of the king's
court helped to prevent any wide aberrations from this theory'.

A few other traits of this action deserve notice. Besides Trespass
and dis-
serving as an interdict for the recovery of possession,' it will seisin.
often serve as 'an interdict for the retention of possession.' To
constitute an actionable disseisin, a successful ejectment of the
possessor is not indispensable; an unsuccessful attempt, a
repelled invasion, will be enough. But further, if without
[p.53] attempting to eject, one troubles the possessor in his possession,
this will often be disseisin enough, if he chooses to treat it as
such. An action in the king's courts founded on mere trespass
and aiming merely at the exaction of damages is a compara-
tively new phenomenon; such actions only become common late
in the reign of Henry III. Many mere trespasses, as we should
think them, have been treated as disseisins; at all events
repeated trespassing can be so treated, if the possessor elects to
consider himself disseised. To meet that troubling of posses-
sion which is caused by nuisances as distinguished from
trespasses, that is, by things that are erected, made, or done,
not on the soil possessed by the complainant but on neighbour-
ing soil, there has all along been an 'assize of nuisance' which
is a supplement for the novel disseisin. Law endeavours to
protect the person who is seised of land, not merely in the
possession of the land, but in the enjoyment of those rights
against his neighbours which he would be entitled to were he
seised under a good title.

an absent

In the first age of its operation the novel disseisin seems to Disseisin of have been directed against acts which could be called ejectments possessor. in the strictest sense of the word, though, as just said, any persistent interference with possession might fall within it.

1 Occasionally Bracton suggests an examination of the plaintiff's causa possidendi, which can not be justified by his general principle. See in particular f. 169 b. A woman is in seisin as doweress; then it is proved in an ecclesiastical court that she was never married; she may be ejected, for her causa possidendi is proved to be false. This is a very dangerous decision if the assize is to keep its possessory rigour.

2 Bracton, f. 161 b. The 'disseisin at election' of later law was an elaborate outgrowth of this idea.

3 Bracton, f. 216 b: 'Frequentia enim mutat transgressionem in disseisinam.' Y. B. 20-1 Edw. I. p. 393.

4 Glanvill, xiii. 34-5-6; Bracton, f. 233; Reg. Brev. Orig. f. 198 b.

.

The scope

of the assize.

English law was perfectly ready to say with the Roman text
that, if a man goes to market and returns to find on his land an
interloper who resists his entry, he has been ejected'. Probably
it was prepared to hold that a person who has once acquired
seisin always retains seisin until he dies, or is disseised, or in
some formal manner gives up his seisin, and that for another to
take to himself the land of which seisin is being thus retained
is a disseisin. But it had to consider other cases, cases in
which some person who is in occupation of the land, but who is
not seised of it, takes upon himself to deliver seisin to another. [p.54]
For example, the land is occupied by a bailiff, by a villein
tenant, by a termor or by a guardian, who takes upon himself
to sell the land and enfeoff a stranger. This feoffee is now
seised; but is there here a disseisin; is the feoffee a disseisor?
The answer that our law gives to this question in later days is,
'Yes; there is a disseisin; both feoffor and feoffee are disseisors.'
A statute of 1285 was needed to make the matter plain, but the
law of Bracton's day seems to have been inclining towards this
This however was, to all seeming, an extension of the
original notion of disseisin, and it was one that was likely to
occasion many a difficulty in the future.

answer.

A still more momentous matter is the treatment of those who have come to the possession of the land after the perpetration of the disseisin. Suppose that M disseises A and enfeoffs X; or that M disseises A and that X disseises M. Can A in either of these cases recover the land by this assize from X?

1 Bracton, f. 161 b; Dig. 43, 16, 1, § 24.

2 Bracton (see f. 38 b, 39), adopting what is now regarded as a misinterpretation of a famous passage of Paulus, Dig. 50, 17, 153, would hold that the man who has once been seised can retain seisin animo solo, and so remain seised though he never cultivates nor goes near the land. It seems very doubtful whether a man could (or can) get rid of a seisin once acquired, except by delivering seisin to some one else.

3 Stat. West. II. c. 25; 2nd Inst. 412; Ibid. 154; L. Q. R. iv. p. 297. The law of Bracton's day provides for these cases writs of entry-even for the case where the feoffor is a mere bailiff; Bracton, f. 323 b. These writs afterwards dropped out from the Register; see Reg. Brev. Orig. p. 231, where it is noted that the writ of entry on alienation by a villein has given way to the assize; for the actual use of such a writ see Note Book, pl. 713. We may say pretty confidently that in Bracton's day no one would ever have used a writ of entry if he could have brought the assize. But Bracton, f. 161 b (this passage is marginal in some MSS.), is coming to the opinion that a feoffment by guardian or termor is a disseisin, and even that a feoffment in fee by tenant for life is a disseisin of the reversioner.

The answer to this question is very instructive. The writ must say of the plaintiff that he has been disseised by the defendant or defendants. These words are to be construed with some strictness. The action lies for the disseisee against the disseisor. It does not lie for the heir of the disseisee; it does not lie against the heir of the disseisor; nor, if the disseisor is dead, does it lie against the feoffee of the disseisor, or against the disseisor of the disseisor. But suppose the disseisor still alive, then this action can be brought by the disseisee against the disseisor and any person who has come to the land through or under the disseisor or by disseising the disseisor. In the cases that we have just now put, if M is still alive, A can, and indeed, if he would succeed, must bring the assize against M and X jointly. He will say in his writ that M and X have disseised him. Upon [p.55] M will fall the punishment due to disseisors. Whether X also has laid himself open to that punishment, is a question as to the time that had elapsed after the disseisin and before X came to the land. If, for example, M enfeoffed X during the time allowed to A for self-help-normally, as we have seen, four days then X is treated as a participator in the disseisin; A might have ejected him by force, and if A sues both M and X both can be punished. If, on the other hand, the feoffment to I was made after the interval which debarred A from self-help, then X can not be punished. But-and this is what chiefly concerns us—in any case if X is sued along with M, he can be compelled to restore the tenement to A1.

sory action

third hand.

Now here our law is answering a vital question. It is A possesdecreeing that a person who has come to the possession of land against the fairly and honestly and by feoffment, one who, as it admits, is no disseisor', can be compelled to give up the land merely because he acquired the land-it may be at a distant removefrom one who was guilty of a disseisin; and no opportunity will be allowed him of pleading any proprietary right that he may have. It is very possible that when the assize was first instituted this result was not intended or not foreseen. The writ which brings this feoffee before the court will accuse him of having perpetrated or joined in the perpetration of a disseisin. Practice has been extending the scope of the assize. The

1 Bracton, f. 175 b-177.

* Bracton, f. 175b: quia illi non sunt disseisitores.' Yet the writ will distinctly charge them with having joined in a disseisin.

The assize of mort

outcome is capricious. Whether the assize will lie against the
feoffee (X) is a question that is made to depend on the, to our
minds, irrelevant question, whether the original disseisor (M) is
yet alive and is comprehended in the writ; for it is absolutely
essential to the success of the assize that the original disseisor
should be a defendant'. This caprice, however, is becoming
more apparent than real, for if the original disseisor is dead,
and the feoffee can no longer be hit by the assize, he can be
hit by a newer action, called a 'writ of entry sur disseisin.' Of
that writ we shall have to speak hereafter, and shall then be in
a position to consider the whole policy of our law in giving
possessory actions against those who have been guilty of no
disseisin. Meanwhile we will follow the chronological order of [p. 56]
development and speak of the second possessory assize.

The mort d'ancestor is a few years younger than the novel d'ancestor. disseisin' and is a much more distinctive product of Norman and English law3. Its formula runs as follows:

A summary action.

Whether M the father [mother, uncle, aunt, brother, sister] of A (the plaintiff) was seised in his demesne as of fee of so much land [rent, or the like] in such a vill on the day on which he died; and whether he died since the period of limitation; and whether A is his next heir; which land X (the defendant) holds'.

If all these questions are answered in the plaintiff's favour he recovers the land.

The action is summary; not indeed so summary as the novel disseisin; there may be more essoining and the defendant may vouch a warrantor who is not named in the writ; but still it is summary when compared with the proprietary action begun by writ of right. Before there has been any pleading, before the defendant has appeared, twelve recognitors are summoned to answer the formulated question; the assize

1 Note Book, pl. 336.

2 See above, vol. i. p. 147.

3 We are not aware of any foreign model after which this assize was fashioned. The plaint of nouvelle dissaisine, or more briefly of nouvelleté, became a well-known action in French customary law. On the other hand, we do not know that the mort d'ancestor is found outside Normandy. Bracton, f. 103 b, 104, while he compares the one to the unde vi, sees in the other a possessoria hereditatis petitio. However ingenious this may be (see Ihering, Besitzesschutz, pp. 85-87), it is probably an afterthought.

4 Glanvill, xiii. 3; Bracton, f. 253 b. There are variations adapted to the case of civil death by monastic profession and death on pilgrimage.

can be taken and the plaintiff can get judgment even though
the defendant does not appear.

d'ancestor

It is regarded as a strictly possessory action. The plaintiff The mort asserts that, within some recent time fixed by ordinance, one, possessory. whose next heir he is, died seised of the tenement in question. He has to make out not merely that he is this ancestor's next heir, but that there was a very near relationship between them. The plaintiff must be son, daughter, brother, sister, nephew or niece of this ancestor. This restriction of the assize is curious. There can be no principle of jurisprudence involved in the denial of this action to one who is grandson or cousin of the ancestor; a next heir is a next heir however remote he may be. [p. 57] But in the history of our forms of action we have frequently to notice that law begins by providing for common cases, and will often leave uncommon cases unprovided for, even though they fall within an established principle. In this particular instance, however, there is more to be said. The mort d'ancestor is a blow aimed at feudalism by a high-handed king. Not only does it draw away business from the seignorial courts, but it strikes directly at those lords who, for one reason or another, are apt to seize the land that is left vacant by the death of a tenant'. But even a high-handed king must, as the phrase goes, draw the line somewhere, and may have to draw it without much regard for legal logic. Besides if the plaintiff must rely on remote kinship, we can not urge that, since the relevant facts must be known to the neighbours, there is no place for trial by battle. About half-a-century later, after a dispute between the justices and the magnates, the former succeeded in instituting the actions of aiel, besaiel, tresaiel and cosinage (de avo, de proavo, de tritavo, de consanguinitate) as supplements for the assize of mort d'ancestor2.

1 Assize of Northampton, c. 4. The words of this ordinance do not expressly give the assize against any one but the lord, and as a matter of fact the lord was a common defendant.

Bracton, f. 281-2; Note Book, pl. 1215. These new actions do not take the shape of formulated assizes; they begin with a Praecipe quod reddat. Even they did not cover the whole ground. Bracton, f. 281, seems to have thought that an action might be brought on the seisin of any lineal ancestor however remote, ad triavum et ulterius si tempus permittat.' But at a little later date we find it said that one can not go back further than one's besaiel, one's grandfather's father; Nichols, Britton, ii. 164, 300: Northumberland Assize Rolls, p. 260. Ultimately, so it would seem, one might go back to one's tresaiel, but no further; Fitzherbert, Natura Brevium, f. 221. This question can hardly have