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Claim.

entry was adjudged sufficient (a)-). And such entry shall give him AN ACTUAL SEISIN of all such lands whereof such ancestor died seised, within the same county, and into which he had a right to enter at the time of such entry made, or which were in the possession of the same abator but entry into lands in one county, or into which he might then enter, or which were in the possession of one abator, will not give him seisin of lands in another county, or to which his right of entry did not till afterwards accrue, or which were in the possession of other abators (b).

But however this entry be made, it must be peaceable, and not "with strong hand." For

(a) Et pur ceo qu'il ne purra entrer per le huis, il entra per le fenestre, et quant l'un moitie de son corps fuit deins la meason et l'autre de hors, il fuit treit hors; per q. il port assise et fuit agarde q. le pl. recovera. 8 Ass. pl. 25, f. 17 b; and vide Bro. Abr. tit. Seisin, 20 and 23; and Entre Cong. 57 and 61.

(b) See further Fitz. Abr.; Bro. Abr.; Littleton; Co. on Litt.; Comyn's Dig.; Vin. Abr.; Gilb. Ten. ; 3 Com. Dig. tit. Entry and Continual Claim; and Co. Read. Fines, Readings, 15, 16, 17; Tracts, 263; 1 Leon. 265.

If two acres descend, and a stranger abate into one of them, the heir should enter into both; or, at least, into that acre in which the abatement was made, in the name of both; for, if he should enter into the other in the name of both, it might be doubtful whether it would suffice. See Plowd. Quæries, qu. 142.

if the heir cannot go peaceably on the lands, he may go as near to them as he safely may, and there make claim, which will amount to an actual entry.

What?

But here it may not be improper to observe, Insufficient, that it is not the mere act of going on the lands that will constitute a legal entry sufficient to vest the actual possession in the person who has right. Thus, when the disseisor requested the disseisee to go into his cellar to see the antiquity of it, which he did; yet this was adjudged to have been no entry in the disseisee: so if the disseisor had asked the disseisee to go to the house whereof the disseisin was made, to his daughter's wedding, or to dine with him, or the like: So where the plaintiff went into the house to the jury on a view to show evidence, it was adjudged not to have been an entry in him; but, in order to constitute a legal entry, the person so entering must enter with that intent (c), and express his intent to be such (d). For otherwise, where could be that notoriety of possession which the law so justly requires in cases of this nature? How could an accidental, or unintentional, or secret entry be any evidence

(c) See Plowd. Comm. 92, 93. See also Co. Litt. 245 b, 368 a; Clerk v. Rowell et al. 1 Mod. Rep. 10; Ford v. Lord Grey, 6 Mod. 44.

(d) Or manifest such intention by some overt act. Robins. Law of Inherit. ch. 4, p. 33, note (i) edit. 1755.

See

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By guardian or lord.

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to the neighbouring tenants of the right or possession of the persons so entering (e) [1] ?

But it is not absolutely necessary that the possession be gained by the actual entry of the very person to whom the lands descend: It may be gained by the entry or possession of THE GUARDIAN or LORD OF THE INFANT HEIR (f); or by

(e) See 2 Bl. Com. 209, ch. 14; Gilb. Ten. 83, 118, and notes. See also Kaims's Law Tracts, ii. & iii.; Sullivan's Lect. lect. 6, p. 58; Dalrym. F. P. 224, &c.

(ƒ) Fitzh. Abr. tit. Descent, 12; Bro. Abr. tit. Descent, 19; tit. Entre Cong. 37; tit. Seisin, 18; Dyer, 291, 2, pl. 69 ; Co. Litt. 15 a, note (4); 29 a, note (3); Kitch. Courts, 110 a; 130 b; 131 a, &c.; 3 Co. 42 a; 9 Co. 106 a; 1 Com. Dig. 433, tit. Assize, (B 4); Co. Compl. Copyh. sec. 41, p. 95; Tracts; Noy's Max. 23, ch. 4; 2 Inst. 134. See further, case of Newman v. Newman, 3 Wils. 516; and 3 Vin. Abr. tit. Assize, (D); Fitz. N. B. 179, F; [Rex v. Sutton, 5 Nev. & Man. 353; 3 Adol. & Ellis, 611; Long v. Myles, Fox & Smith's Irish King's Bench Reports, 1.] And note; the guardian need not be formally assigned. See Newman v. Newman, 3 Wils. 528; 9 Co. 106 a.

So if a stranger enter into the lands of an infant and take

[1] In the late cases of Doe d. Griffith v. Pritchard, 5 Barn. & Adol. 765, and Doe d. Jones v. Williams, 5 Barn. & Adol. 783, it was held that any entry made with an intention of asserting a right of ownership was a sufficient legal entry, in the first case to avoid a lease on forfeiture, and in the second to avoid a fine levied with proclamations, without an express declaration of the particular act adverse to the interest of the party entering, which was meant to be defeated. By the late act for the limitation of actions and suits, 3 & 4 Wm. IV. c. 27, s. 10, it is enacted, that no person shall be deemed to have been in possession of any land, within the meaning of the act, merely by reason of having made an entry thereon; and the eleventh section enacts, that no continual or other claim upon or near any land shall preserve any right of making an entry or distress or of bringing an action.

the possession of THE ANCESTOR'S LESSEE FOR Tenant of a

YEARS, TENANT BY ELEGIT, STATUTE-MERCHANT,

or STATUTE-STAPLE (g). And as THE POSSESSION

the profits, he shall be considered, both at law and in equity, as entering as guardian, and shall be accountable as such. See Fitz. N. B. 118, B; Noy's Max. 38; Co. Litt. 89 a & b; Sullivan's Lect. p. 128, 9; Morgan v. Morgan, 1 Atk. 489, and Dormer v. Fortescue, 3 Atk. 130.

And the entry of such person will make a possessio fratris in the infant. See Doe v. Keen, 7 Durnf. & East, 386 & 390; Whitcombe v. Whitcombe, 3 Wils. 516, &c.; and Prec. Chanc. 280.

(g) Co. Litt. 15 a, 243 a; 3 Co. 42 a; Kitch. 109 b; Batmore v. Graves, 1 Vent. 261; 1 Com. Dig. 433, tit. Assize (B 4); 5 ibid. 443, tit. Seisin (A 2) and (C); Margaret Podger's case, 9 Rep. 105 b; Gilb. Ten. p. 158; Co. Copyh. s. 41; Tracts, 95, and Supplem. s. 5, p. 157, 8; Noy's Max. 23, ch. 4; Moore, 125, case 272; Bro. Abr. tit. Seisin, 18, 36. See De Grey et al. v. Richardson et al. 3 Atk. 469; Newman v. Newman, 3 Wils. 516, 528; Jenk. Cent. 242, pl. 25. See 2 Inst. 688, 9; 6 Rep. 57 b; Fitz. N. B. 179, F.

rent.

And this, though the heir dies before the day of payment of See the above references, and particularly Moore, 126, case 272; Co. Litt. 15 a, and 3 Atk. 469; [Bushby v. Dixon, 5 Dowl. & Ry. 126; 3 B. & C. 298].

But if the ancestor had made a lease FOR LIFE, reserving rent, and the heir receive the rent so reserved; yet such receipt will not make POSSESSIO FRATRIS in the heir of such reversion; it being upon an estate of FREEHOLD. See Co. Litt. 15 a, and note (5); and post, ch. 3, s. 1.

And note; if a common recovery be suffered of lands which are let on leases for years, the recoveror will not have the reversion presently by the judgment, (i. e. will not be in the actual possession by reason of such leases for years) but the recovery must be executed by writ, entry, or claim. 2 Cruise, 135, ch. 6, cites 1 Co. 94 b, 106 b; and see Shellie's case, Moore, 137, 141, pl. 281. See also West v. Sutton, 2 Lord Raym. 853.

chattel interest.

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Lease by the heir before

entry.

OF THE LESSEE FOR YEARS OR AT WILL IS THAT
OF THE LESSOR

(h) so it seems that the heir

If a man recover an advowson, and after the bishop collate for lapse, the same is an execution of the judgment, and will make a possessio fratris. P. Moyle, 22 Hen. VI., cited by Anderson, C. J., 1 Leon. 234.

See further next note (h), and 3 Vin. Abr. tit. Assize, (D). (h) See before note (g), and ante, s. 1, p. 27; 1 Com. Dig. 433, tit. Assize (B 4); 5 ibid, 443, tit. Seisin (A 2); 6 ibid. 298, tit. Descent (C 9); Kitch. 62. See 3 Wils. 516, 28; Buller's N. P. 104. And see also Brediman's case, 1 Wils. 176, and 6 Co. 57 a, 59 a; Co. Litt. 290 b, note (1), 330 b, note (1).

So if a REMAINDER be limited on an estate for years, the possession of the particular tenant is the possession of the remainder-man. See (of Freeholds) Litt. s. 60, and Co. Litt. 49 a & b; and 239 b, and note (2); 2 Bl. Comm. 167, ch. 11. And see also post, ch. 3, s. 1; and ante, p. 21.

Of Copyholds, 2 Levintz, 107; Batmore v. Graves, 1 Vent. 260, 1; 6 Vin. Abr. tit. Copyhold (P b), (C e), pl. 15; 2 Com. Dig. 391, tit. Copyhold (G 9), and ante, p. 21, note (w); [p. 21, note (g)].

So the entry of A DEVISEE for YEARS will make POSSESSIO FRATRIS. See Jenk. Cent. 242, pl. 25. See it also in 7 Vin. Abr. 585, tit. Descent (K), pl. 34 & 36; and in Co. Litt. 15 a, note (4). See also Towers v. Burrows, Dyer, 342, pl. 54; and Bro. Abr. tit. Feoffm. al Uses, 33, and Descent, 36; Fitzh. Abr. tit. Subpoena, 3; 3 Leon, 25, case 53.

Devise to executors to pay debts, they have a chattel interest. See 8 Co. 96 a; Co. Litt. 42 a; Cordal's case, Cro. Eliz. 316; Hilchins v. Hilchins, 2 Vern. 403. [1].

[1] The estate taken by the executors depends on the purposes of the will; if those purposes require that the executors should take the fee, they will do so. The cases on this subject are collected in 1 Powell on Devises, by Jarman, pp. 225, 226. See also Doe v. Walbank, 2 Barn. & Adol. 554; Heardson v. Williamson, 1 Keen, 33; Doe d. Gord v. Needs, 2 Mee. & Wels. 129.