writ of entry, assise, formedon, writ of right, or otherwise. The forms are indeed preserved in the practice of common recoveries; but they are forms and nothing else; for which the very clerks that pass them are seldom capable to assign the reason. But the title of lands is now usually tried upon actions of ejectment or trespass.

NOTES OF THE AMERICAN EDITOR TO CHAPTER X.

(39) Of a more substantial and permanent nature than those transitory rights of which personal chattels are the object, page 167.

Students are too apt to pass over these chapters (10-15) hastily and with slight attention, thinking that they relate only to land law, and are mostly obsolete even in that regard. But there is no part of the commentaries that will better repay careful study, if one wishes to understand the common law in it's original form thoroughly. The law of real property received more attention than any other subject, except, perhaps, pleading, while the common law was forming-and it was in this that were formed the principles and fundamental conceptions that were applied to all the rest.

For example, the student will see that the divisions of injury here given are typical of all forms now recognized by the law in respect to chattels, and even to incorporeal rights.

Every right may be conceived, as it often has been by philosophical writers, as a closed field surrounding the person to whom it belongs, and of which his personality forms the center, while the legal definition marks the boundary between that and the similar rights of others. All forms of injury, therefore, may be reduced to these :

1. Entire deprivation of the right or its object, typified by the ouster of the freehold; the deprivation or asportation of his chattels; the destruction or refusal

of his civil rights; the forcible or fraudulent abstraction. of money, etc.

2. Forcible intrusion upon his rights and injury not amounting to entire deprivation, typified by trespass in all its forms to property or person; the distinctive feature of all such injuries, being the intrusion of the wrong-doer upon the field of right belonging to another, and in his actual possession and enjoyment.

3. Damage wrought upon that field of right by the act of one who abstains from intruding upon it, but does on his own land or that of others injurious acts typified by nuisance. Most actions on the case are of this character, as indirect wrongs, interfering with another's enjoyment of his own rights, though not directly crossing the boundary between them.

. 4. Waste typifies the numerous cases in which one's rights are injured by another to whom the owner has intrusted the possession of their objects. The wrongdoer here has been admitted within the field of another's right and has taken advantage of his position to do the harm; as in actions against a negligent bailee, breaches of trust, etc.

5. Subtraction, though a more technical and narrower class than the four preceding, may stand for the vast class of cases of non-feasance and breach of wrong; harm done by the non-fulfillment of positive duty owed by one man to another. (See note 47, post, page 319.)

(40) The word assise. . . . signifies originally the jury who try the cause, page 185.

It is singular that Blackstone does not mention among the meanings of assise that of ordinance or statute, so well known in the assises of Northampton of Clarendon: which must have been so familiar to the people in the assises of arms, of the forest, of bread, of beer, etc. (Stubbs, S. C. p. 193, etc.)

The question which was the original signification has more than a merely etymologic interest. If, as seems probable, assise meaning the jury is derived from assise meaning the law, much light is thrown on other ineanings, and especially on the assises discussed here of mort d'ancestor, etc., with the procedure in them, and especially their form of jury also called the assisa, in its distinction from the jurata.

The various meanings are closely connected, and it is not easy to say certainly which of them may represent the earliest usage. But that it was the jury who sat together," as Coke and Blackstone think, is improbable. The earliest examples of its usage are in the sense of law or ordinances-the later statute-as in the cases above and in several passages of Glanvil, e. g., nulli licet per assisam regni, viii. 8, 5. The forms of jury known as assises were certainly those established by positive law, whether that be the origin of the name or not: the great assise by that mentioned in Glanvil, ii. 7, and the possessory assises by the constitutions or assises mentioned above. It is therefore much more probable that they were so called from the laws by which they were established, rather than from the sitting together of the jurors, which was common to them with the juratæ, from which they were so constantly distinguished. The phrase occurring so often in Glanvil's writs, posuit se in assisam meam, et petit recognitionem fieri, points to the same origin.

That from the assises as modes of trial the assises in each county took their name is unquestionable.

(41) The statute of Marlberge, page 187.

The curious discrepancy between this name and that given the saine statute a few lines below, where it is called the statute of Marlbridge, is probably explained by the fact (shown by the marginal references), that the latter was a part of Blackstone's original text, published

in 1768, while the former was intercalated in the seventh edition seven years later. This is also the form adopted in the Statutes Revised, A. D. 1870, and of Pickering's edition, while Coke used the other.

(42) By assise of mort d'ancestor, or other jury, or any judgment of the court, page 188.

et

This is a singular variance from the letter of the statute quoted, which reads, per assisam mortis antecessoris ... per juratas in curia domeni R. The passage is of interest as a clear recognition of the distinction between the assisa and the jurata in 1235, and a refutation of the recent hypothesis that the terms were interchangeable (L. O. Pike, Introd. to Y. B. 12 & 13 Edw. III. pp. xlv. lxv.), although there seems to be no authority for Blackstone's use of the word "other" jury.

CHAPTER THE ELEVENTH.

OF DISPOSSESSION, OR OUSTER, OF CHATTELS REAL. Having in the preceding chapter considered with some attention the several species of injury by dispossession or ouster of the freehold, together with the regular and well-connected scheme of remedies by actions real, which are given to the subject by the common law, either to recover the possession only, or else to recover at once the possession, and also to establish the right of property; the method which I there marked out leads me next to consider injuries by ouster, or dispossession, of chattels real; that is to say, by amoving the possession of the tenant either from an estate by statute-merchant, statute-staple, or elegit: or from an estate for years.

I. Ouster, or amotion of possession, from estates held by either statute or elegit, is only liable to happen by a species of disseisin, or turning out of the legal proprietor, before his estate is determined by raising the sum for which it is given him in pledge. And for such ouster, though the estate be merely a chattel interest, the owner shall have the same remedy as for an injury to a freehold; viz. by assise of novel disseisin. But this depends upon the several statutes, which [199] crcate these respective interests, and which expressly provide and allow this remedy in case of dispossession. Upon which account it is that sir Edward Coke observes, that these tenants are said to hold their estates ut liberum tenementum, until their debts be paid: because by the statutes they shall have an assise, as ten

a F. N. B. 178.

b Stat. Westm. 2. 13 Edw. I. c. 18. Stat. de mercatoribus, 27 Edw. TIL. c. 19.

c 1 Inst. 43.