years now last past, by taking the efplees thereof to the value, &c. and died thereof seised, leaving one Elizabeth his wife him furviving, and from the said Thomas Gamlyn the right to the faid tenements with the appurtenances defcended and came to one William Gamlyn, as brother and heir of the faid Thomas Gamlyn, subject to the estate of free bench of the faid Elizabeth, therein, according to the custom of the manor aforefaid; and from the fame William Gamlyn the right, &c. fubject, &c. defcended and came to one Hannah Dowland, as eldeft coufin and heir of the faid Wm. Gamlyn, according to the custom, &c. viz. as eldest daughter and heir of Hannah Ball, who was the only fifter and heir of one other Thomas Gamlyn, who was the father as well of the faid first mentioned Thomas Gamlyn as of the faid Wm. Gamlyn, which said Elizabeth Gamlyn died in the lifetime of the faid Hannah Dowland; and from the said Hannah Dowland the right, &c. descended and came to one Thomas Dowland the fon and heir of the faid Hannah Dowland, and from the faid Thomas Dowland, the fon of the faid Hannah Dowland, the right, &c. defcended and came to the faid Thomas Dowland, the now demandant, as fon and heir of the faid Thomas Dowland, the fon and heir of the faid Hannah Derland; and that this is right he the faid Thomas Dowland, the now demandant, offers," &c. To this the defendants demurred generally, and judgment was given for the demandant in the manor and forest Court, to recover his feifin of the tenements, &c. The defendants thereupon profecuted a writ of falfe judg. ment returnable in the Court of Common Pleas; and the sheriff in his return ftated, that he had recorded the plaint in queftion, and then fet out the whole of the proceedings at length, including those before mentioned; on which the following caufes of falfe judgment were affigned; 1. That no feifin of right of the premifes is in the count alleged and averred in Thomas Gamlyn, who is therein alleged to have been laft feifed, and from whom the demandant deduces his title; and that the right is in that count alleged to have defcended to the feveral perfons therein named in fucceffion from the faid Thomas Gamlyn, who for aught appears had no right; and that the title is attempted to be deduced to the demandant from an ancestor who is not alleged to have any right, but for aught appears might have been feifed of wrong, and the right have P 3 been 1804. DOWLAND against SLADE and Wife. [ 274 ] 1804. DOWLAND again t SLADE and Wife. been in those who were feifed of and held the fame premifes fince the death of the faid Thomas Gamlyn; and that the roo of the demandant's title is defectively and erroneously alleged' 2. That fuppofing the faid Thomas Gamlyn, the person last seised to have had any right, no right is deduced from him to the demandant, inasmuch as the faid Hannah Dowland is in the faid count alleged to be the heir of the faid William Gamyln; and the right to the premises to have defcended to her as the heir of Hannah Ball, which Hannah Ball must therefore have died before the faid William Gamlyn, or the faid Hannah Dowland could not have been heir to the faid William Gamlyn, or the right have defcended from the faid William Gamlyn immediately to the said Hannah Dowland ; and yet the said Hannah Ball is in the faid count ftated to have been the fifter and heir of Thomas Gamlyn the father, who must therefore, have died in the lifetime of Hannah Ball, and to which faid Thomas Gamlyn the father, William Gamlyn the fon, who furvived Hannah Ball, must have been heir, and to which faid Thomas Gamlyn the father Hannah Ball never could have been heir, if it be true, as there alleged, that Hannak Dowland was heir to William [275] Gamlyn at the time of his death, and that the right descended immediately from him to her. There was alfo a third cause of falfe judgment ftated, (but this was not infifted on upon the argument in this Court,) viz. that no cuftom of the manor is alleged whereby it appears that eldest daughters and eldest female coufins are entitled to be heirs alone and exclufively of their younger fifters. The Court of Common Pleas, for the fecond caufe above alleged, reverfed the judgment of the Court below upon which judgment of reverfal a writ of error was brought in this Court, and the common error affigued. This cafe was argued in laft Eafter term by Abbott for the plaintiff in error, (the original demandant.) As to the ift error affigned, that Thomas Gamlyn, the ancestor from whom the demandant derives title, is only stated to have been "feifed in his demefne as of fee," without adding, “and of right;" these words are not neceffary (though it was admitted that they are to be found in all the precedents of writs of right) (a); (a) The words et de jure are omitted in one precedent only, which is in Raftal, tit. False Judgment, pl. 9. (the precedent which was followed in this case); but this was admitted to be a mistake ; for øn fearching the roll, thofe words were found to be inferted. for 1804. DOWLAND against SLADE and Wife. [276] for it is not neceffary to allege any matter in pleading which cannot be traverfed, and need not be proved; and the tenant cannot admit the feifin, and traverse the right to the feifin and a wrongful feifin is fufficient to fuftain a writ of right. Nor is it neceffary to allege matter of law; and whether the feifin be of right or of wrong is a question of law and not of fact. Whatever the practice may have been, the neceflity of it must be tried by referring to principles. In cafe for disturbance of a common way or other appurtenant to land, it is ufual to fay that the plaintiff was lawfully poffeffed of the land; yet that is not neceffary. Indictments for murder always fay, that the deceased was "in the peace of God and of our Lord the King," and yet that is not neceffary to be alleged (a). The books which treat of the writ of right only fay, that it is founded on a feifin in fee fimple of a man or his ancestors; they do not fay a lawful or rightful feifin, Co. Lit. 158. It can only bind between the parties. It is called a writ of right, not because it is founded only on the right, but becaufe it is adapted to the recovery of it when all other poffeffory remedies fail. Lit. f. 514. fays, that if the demy mark be not tendered, "the grand aflize ought to be charged only to inquire of the mere right, and not of the poffeffion," &c. The words, "which he claims as his right and inheritance," are not in any of the precedents of the writs in Fitzherbert's Nat. Brev., or the Regifter, when directed to lords of manors, but only in the writs in C. B.; quia dominus remifit curiam. The ftatute of limitations, 32 H. 8. c. 2. ípeaks only of feifin or poffeffion, not of lawful feifin. And Lit. /. 478. fhews, that a wrongful feiin originating in a diffeifin is fufficient to sustain a writ of right; as "if a man be diffeifed by an infant who aliens in fee, and the alienee dieth feifed, and his heir entereth, the diffeifor being within age, it is in the election of the dif seisor to have a writ of dum fuit infra ætatem, or a writ of right, against the heir of the alienee." And this is confirmed by Lord Coke's Comment. Co. Lit. 278. b. The fubject is refumed in f. 481; and in s. 482 another instance is put of a recovery upon a feifin acquired by wrong: "if he in the remainder had entered upon the tenant for life and diffeifed him, and after the tenant enter upon him, and after the tenant for [277] life by fuch recovery lofe by default and die, he in remainder may well have a writ of right against him which recovers, because the mife fhall be joined only upon the mere right, &c., yet in this cafe the feifin of him in the remainder was defeated by the entry of the tenant for life." Upon which Lord Coke, (Co. Lit. 280. b.) obferves, "Here a diffeifin gotten by wrong, and defeated by the entry of him that right hath, is fufficient to maintain a writ of right against the recoveror in this cafe." The cafe put by Littleton may be the very cafe here. For fuppofe Thomas Gamlyn the ancestor, on whose feifin the demandant counts to have had a remainder expectant on an eftate for life, and to have entered on the tenant for life, and thereby acquired a wrongful feifin, and to have been afterwards oufted by him, and then have died; and then the tenant for life to have died; the count could not properly have been otherwife framed than it is. And if the count may be good in any fuppofable cafe, no advantage can be taken of it on demurrer or on error. One who has a wrongful feifin may yet have more right than another. To fhew that the tenant cannot admit the feilin and traverse the right, he cited M. 27 Ed. 3. fo. 85. pl. 26. and Fitzh. Abr. Droit. pl. 20. S. C., where Thorpe, C. J. faid, that the tenant ought to have denied the fifin, and not to have acknowledged it; for when he acknowledged that, he acknowledged the right to it per degrees. The iffue in this form of proceeding is only on the right comparas tively; for the iffue is that the demandant has more mere right than the tenant. And on this iffue the tenant is to begin, unless he tender the demy mark, in order to put the demandant to prove the feifin in the reign alleged in his count. There is a record in Booth's Real Action (a), of the form of the iffue on a tender of the demy mark; and there the grand aflize are directed to inquire whether the demandant were feifed of the tenement in dominico fuo ut de feodo (not saying et de jure) tempore dicti domini regis Henrici octavi (b). He then referred to various precedents in formedon & juris utrum, the one the writ of right of tenants in tail, H. 18 Ed. 4. 23: pl. 6., and Bro. Abr. Droit de Recto, pl. 33.: the other, the ecclefiaftical writ of right, Fitzh. Nat. Brev. 50. G. (p. 116. ed. 1755.) where the allegation is only of the feifin in fee, and not (a) P. 102., and vide p. 98., and 1 Reeves' Hifl. of Law, 429. (b) See alfo another fimilar precedent in Lit. f. 514. of 1804. DOWLAD against SLADE and Wife. of the right. 1. In formedon, Rafal, tit. Formedon in Remainder, pl. 3. Co. Entr. Formedon in Defcender, pl. 5. The donees in tail are only faid to have been feifed in dominico fuo, &c. without the words de jure; though their heir is ftated to be feifed de jure. There are feparate counts alfo againft four vouchees in the fame form. In ibid. pl. 10. the feoffees to uses are not faid to be feifed de jure; but the heir in tail who entered is faid to be fo feifed. In Co. Entr. Formedon in Remainder, pl. 14. neither the donor nor the feoffees to uses before the ftatute, nor the ceftuy que ufe after the ftatute, are faid to be feifed de jure. Former proceedings are there fet out, which have not those words; and the tenant pleads without them as to fome perfons, though as to others, the words de jure are introduced. There is a like precedent, ib. pl. 15. and ib. pl. 16. in Reverter. In pl. 18. in Reverter, the donor is not ftated to be feifed de jure, though the feifin of the donee is fo alleged. In Rafal's Entr. Formedon, pl. 5. the donee is first faid to have been seised in dominico fuo ut de feodo only, and then to have died feifed, &c. feodo et jure. In pl. 6. the feifin of the [279 ], donor is alleged without the words de jure; that of the donee with them. In ib. Formedon in defcender, pl. 8. the donee is feiled in dominico fuo ut de feodo talliato; but the heir is seised, &c. de feodo et jure. In pl. 9. both the donee and heir are faid to be feifed only in dominico fuo ut de feodo talliata. In Refceit. in Formedon, pl. 5. the donor is feifed in dom. fuo ut de feodo, the donee in dom. fuo ut de feodo talliato. 2d, In Juris utrum the iffue is, Whether the demandant have more to hold in frankalmoigne, or the tenant as his lay fee; and the demandant always counts on fome feifin of his predeceffors or of his own. In Co. Entr. Juris utrum, pl. 1. the count is of a feifin in fee in right of the chantry: the tenant pleads a gift in tail, and several defcents; but neither the feifin of the donor or donee or heir in tail is faid to be de jure. In pl. 2. the demandant alleges feifin in dom. fuo ut de feodo et de jure hofpitalis. In pl. 5. it is in dom. fuo ut de feodo et jure ecclefia. In pl. 4. it is in dom. fuo ut de feodo et jure, in jure ecclefia: but the verdict only finds the feifin in dom. fuo ut de feodo, in jure ecclefia. In pl. 5. the count is the fame as in pl. 4. In Raftal's Entr. Juris utrum, pl. 2. it is in dom. fuo ut de feodo et jure in jure ecclefia. Pl. 3 ftates the feifin ut de jure in jure, ecclefia. Pl. 4. in dom. fuo ut de feodo et jure ecclefiæ. But the tenant |