ASSISE, WRIT OF, is a writ which lies for the re covery of things immoveable; and it has the name of assise, because in these writs the sheriff is ordered to summon a jury, or assise ; which is not expressed in any other original writ. The writ of assise is said to have been invented by Glanvil, chief justice to Henry II. By the stat. \Vestm. 2. 13 Edw. 1. c. 24. it is called festinum remedium, when compared with the writ of entry ; because it does not admit of the many dilatory pleas and proceedings which occur in other real actions.
As a writ of entry is a real action, which disproves the title of the tenant, by shewing the unlawful com mencement of his possession ; so an assise is a real ac tion, which proves the title of the demandant, merely by shewing his own or his ancestor's possession. The remedy, by writ of assise, is applicable only to two spe cies of injury by ouster ; viz. abatement, and a recent or novel disseisin.
If the abatement happened upon the death of the de mandant's father or mother, brother or sister, uncle or aunt, nephew or niece, the remedy is by an assise of mort d'ancestor ; which is a writ directing the sheriff to summon a jury of assise, to view the land in question, and to recognise whether such ancestor were seised thereof at the day of his death, and whether the deman dant be the next heir. Shortly afterwards, the judges usually come down, by the king's commission, to take the recognition of assise; when, if the above mentioned points are found in the affirmative, the law immediately transfers the possession from the tenant to the deman dant.
If the abatement happened on the death of one's grandfather or grandmother, the assise of mort d'ances tor no longer lies, but a writ of ayle or de avo; if on the death of the great grandfather or great grandmother, then a writ of besayle or de firoavo. But if it mounts one degree higher, or if the abatement happened upon the death of any collateral relation, other than those be fore mentioned, the writ is called a writ of cosinage de consanguineo. There is also another ancestral writ, called a nuper obiit, to establish an equal division of the land in question, where, on the death of an ancestor having several heirs, one enters and holds the other out of possession. None of these possessory actions, how
ever, will be allowed for an abatement consequent upon the death of any collateral relation, beyond the fourth degree ; though in the lineal descent, the demandant may proceed ad infinitum.
It was always held to be law, that an assise of mort transeeror did not lie where lands were deviscable, by the custom of the place, in a man's last will ; because, in this case, the right of possession eould never be de; termined by a process, which only enquired into the sei sin of the ancestor and the heirship of the demandant. And hence we might reasonably conclude, that no assise of mort d'ancestor can now be brought of any lands in the kingdom, since the statute of wills, 32 Henry VIII. c. 1. made all soccage lands deviseable, and the statute 12 Car. II. c. 24. converted all tenures, with a few ex ceptions, into free and common soccage. But in case of abatements, recourse may be properly had to the more ancient writs of entry.
An assise of novel disseisin is a writ which lies where a tenant in fee-simple, fee-tail, or for term of life, is dis seised of his lands, or tenements, rents, 8cc. It is an action of the same nature with the assise of mort d'an cestor, in respect that the demandant's possession must be shewn. It differs from it, however, considerably in other points; particularly in reciting a complaint, by the demandant, of the disseisin committed, in terms of di rect averment: upon which the sheriff is commanded to reseise the land and chattels thereon, and keep the same in his custody, till the arrival of the justices of assise; and in the mean time to summon a jury to view the premises, and make recognition before the justices. The former part of the command is now omitted, since the introduction of the practice of giving damages, as well as possession. If, upon trial, the demandant can prove a title, his actual seisin in consequence thereof, and his disseisin by the present tenant ; he shall recover his seisin, and have damages for the injury..