manded against William Slade and Elizabeth his wife, the de fendants in error, certain lands fituate in the manor of Gillingbam, in the county of Dorfet, and within the jurifdiction of that court, and whereof he said, that Thomas Gamlyn was feifed in bis demefne as of fee, according to the custom of the manor aforefaid: and then derives title by defcent from T. Gamlyn as follows, viz. that from the faid Thomas Gamlyn the right to these tenements defcended and came to one William Gamlyn, as brother and heir of the faid Thomas, (fubject to the estate of freebench therein according to the cuftom of the manor of Elizabeth the wife of the faid Thomas); and that from the faid Wm. Gamlyn the right to those tenements defcended and came to one Hannah Dowland, as eldeft coufin and heir of the faid William Gamlyn, that is to fay, 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 first-mentioned T. Gamlyn as of the faid W. Gamlyn; (which said Eliz. Gamlyn died in the lifetime of the faid Hannah Dowland); and from the faid H. Dowland the right to the said tenements with the appurtenances defcended and came to one Thomas Dowland, and from him to the now demandant. Upon this record two objections have been made to the judgment which has been given in the court baron of the forest manor of Gillingham for the demandant. The first is, that it is not alleged that T. Gamlyn, from whom the demandant deduces his title, was seised "in his demefne as of fee AND RIGHT" ; but only "in his demefne as of fee," of the lands in question. The fecond objection is, that in deducing the title from T. Gamlyn, the demandant claims through Hannah Dowland, who is ftated to be the heir of W. Gamlyn, and that the right defcended to her, as heir of Hannah Ball, who is ftated to have been the heir of one Thomas Gamlyn, the father of W. Gamlyn; which could not be; for if Hannah Dowland was the heir of W. Gamlyn, Hannah Ball, (through whom he claims, and who is ftated to be the heir of Thomas Gamlyn the father) muft have died before W. Gamlyn, in which cafe he, and not Hannah Ball, must have been the heir of Thomas Gamlyn his father. On this writ of false judgment the Court of Common Pleas reverfed the judgment [288] of the court of the forest manor, being clearly of opinion that this last objection was fatal: and though they did not decide on the first objection, they inclined to think that fatal alfo; as all the 1804. DOWLAND against SLADE and Wife. [ 289 ] the precedents with the exception of one only contained the above allegation. On this judgment a writ of error having been brought, it has here been argued that the judgment of the Court of Common Pleas is erroneous, for that the allegation, that the ancestor from whom the demandant claims was feifed AS OF RIGHT, is but matter of form, which may be inferted in the count or not; for that a writ of right may be maintained on a wrongful feifin, as by an infant diffeifr against his own alienee; that the feifin cannot be admitted and the right denied. And though the issue be in this proceeding formally on the right, yet the tenant, generally speaking, is to begin, and fhew that he has more mere right than the demandant; and though it was admitted that all the precedents of counts in writs of right allege the feifin de jure, and that upon further investigation there is not even that fingle exception, which, when the cafe was argued in the Common Pleas, was fuppofed to exift; the entry in Rafal by an examination of the roll having been fince found incorrect; yet, from analogy to counts in formedon, and juris utrum which are proceedings in the nature of writs of right, where the allegation de jure is frequently omitted; it was infifted, that the averment that the feifin was de jure is but a form, not neceffary to be observed. And as to the last objection, it has been faid, that the count need not have alleged that Hannah Ball was the heir of Thomas Gamlyn, and that word may therefore be rejected, or understood only, as a word of pedigree, and as denoting a defcent mediately through, and not directly and immediately from, that particular anceftor: or if not, that as a good title is ftated in fact, the party shall not be prejudiced from a mistake in a legal conclufion from this fact. But notwithstanding the ingenuity and learning with which this cafe has been argued, we are of opinion that the judgment of the Court of Common Pleas must be affirmed; which Court, it may be reasonably concluded, from what was faid by the Chief Justice in delivering his opinion, would have decided against the plaintiff in error on both points, had it not been fuppofed that there exifted one exception to the univerfality of alleging the feifin of the ancestor of the demandant to be of right and as it is now found that there is no fuch exception, it would be too much to conclude that an allegation, which has not been found in any cafe to have been omitted, may or may not be used ad libitum in a proceeding, the object of which is to decide in fa your 1804. DOWLAND against SLADE and Wife. vour of that party, whofe right to the lands in difpute is greatest. The reference to the 478th fect. of Littleton, from whence it appears, that an infant diffeifor may recover in a writ of right against his alienee, does not fhew that the form of the count must not be as the defendant infifts; for as between fuch parties, the diffeifor has the greater right; and his feifin, though acquired by wrong, will establish a right against one who can only claim under the demandant, whose alienation on account of his nonage will not be binding. And the analogy from counts on writs of formedon and juris utrum does not hold; for in them the mere right to the lands is not put in iffue, as in writs of right. properly fo called; for in formedon the general iffue is non dedit, that is, the entail, not the mere right is traverfed: and in juris utrum the general iffue for the tenant is, that it is his lay fee, and not the alms of the church: (vid. Booth's Real Actions, p. 222. and [290] Co. Ent. 400.) But this matter does not reft merely upon reafoning; for Bracon, in the chapter referred to by Mr. Reeves in the paffage cited at the bar, and in whofe time actions of this fort were common, and who must have been well acquainted with what was neceffary to be alledged in counts on writs of right, lays it down exprefsly, that the count must allege that the feifin was de jure: the paffage is to be found in p. 372. b., where the author having ftated the form of the count in a writ of right, in which the ancestor is averred to have been seised " in dominico fuo ut de feodo et jure," proceeds thus to comment on the count: "Non enim fufficit fimpliciter proponere "intentionem fuam (by which word the count is meant), fic dicendo, peto tantam terram ut "jus meum," nifi fic illam fun"daverit, quod doceat ad ipsum jus pertinere, et per quam viam, "et per quos gradus jus ad ipfum debeat defcendere. Item cum "agat per breve de recto ad utrumque jus confequendum ((s) "tam jus poffeffionis quam proprietatis de feifinâ talis antecef"foris, non fufficit fi dicat, quòd talis anteceffor fuus fuit fei"fitus in dominico fuo ut de libero tenemento tantum, "vel in "dominico fuo ut de feodo tantum," nifi doceat quod in dominico "fuo ut de feodo, quod fub fe continet liberum tenementum, "et totum jus poffefforium, nifi dicat et adjiciat et jure, quod "fub fe continet jus proprietatis." And afterwards in page 273.6. he adds, Si autem in narratione faciendâ aliquis articulorum "prædictorum omittatur, et narratio a petente advocetur, ita "quod error revocari non poffit; et petens clameum fuum pro VOL. V. 66 fe, 1804. DOWLAND againf SLADE ard Wife. "fe, et hæredibus fuis amittet in erpetuum." The fame doctrine may be found adopted in Fleta, book the 6th, c. 16. de Narrationibus, tranfcribed apparently from Bracton. Upon these authorities we are of opinion, that for the * firft objection the count in this cafe is bad; that the judgment of the court [291]baron was false; and that the judgment of the Court of Common Pleas must be affirmed. And this makes it unneceffary to fay any thing as to the fecond objection, or to examine the many authorities from the entries, which the industry and ingenuity of the counsel have brought together on that point. Judgment affirmed. Thursday, June 7. The Court will quafh a writ for irre REUBEL against PRESTON. THE defendant was arrested upon a bill of Middlesex issued the 28th of May, returnable" on Monday next after the mor gularity if it row of the Holy Trinity," inftead of the usual return on Monday next after 8 days of the Holy Trinity (a). have an in formal return, although the day of the return be equally certain as in the common form. Nolan obtained a rule for fetting afide the proceedings for irregularity, on account of this departure from the fettled form of returns; against which Marryat fhewed caufe, contending that the writ was equally obligatory on the sheriff where there was a day certain named in the writ for his making his return in term time, in whatever manner it was computed. But Lord ELLENBOROUGH C. J. faid, there was no reason for departing from the fettled form which had been always adopted in defcribing the return days of the term in writs, though by computation the sheriff might know as well on what day to make [292] his return. If the regular known forms were departed from in one inftance, a thousand whimsical returns might be framed, and great confufion introduced. Per Curiam, Rule abfolute. Marryat then prayed leave to amend, which was granted. (a) Vide the Table of Terms and Returns, Tidd's Appendix, ch. z. N. 1804. WHITE against JONES, Marfhal of K. B., &c. Friday, fuit of A., in a joint action against B. of B. R., charged in cuftody in any more THE plaintiff declared in cafe against the defendant for an B. being in escape, and stated that whereas one S. Mendel and J. O. were custody at the indebted to the plaintiff in 430, the plaintiff for recovery thereof profecuted out of B. R. a fpecial capias ad refpondendum against them, marked for bail, &c. under which S. M. was an C., B. arrested, and for want of bail was afterwards committed to the juftifies bail in an action cuftody of the Marfhl, charged with the faid action: and then intitled by proceeded to charge the Marthal for voluntarily permitting the mistake faid S. M. to go at large without the licence of the plaintiff, against R. only, and a to his damage, &c. Pleas, ift, Not guilty. 2dly, Atis non, rule fo intitled &c. because after the commitment of the faid S. M. to the is lerved on defendant's cuftody a rule of court was made, ordering the faid the marshal S. M. to be difcharged out of the custody of the Marthal as to who thereup. the faid action, by virtue of which rule the defendant difcharged on difcharges the faid S. M., &c. and upon which iffue was taken. 3dly, B out or Aetio non, &c. because after the commitment of the faid S. M. cuftody, he not being to the cuftody of the defendant a certain rule of court was made, &c. (and then the plea fet out the tenor of the rule, which was intitled "White v. Mendel," (omitting the other defendant's name), and ftated that bail having been put in and juftified for the defendant, and allowed, the defendant fhould be difcharged as to this action). By virtue of which rule the defendant as Marthal afterwards difcharged the faid S. M. then the defendant averred that the faid S. M. was not at the mak- action for an ing of the faid rule, or at any other time in his cuftody in any action whatsoever, except the said action in the declaration mentioned, and that the person mentioned in the said rule by the name of Mendel is the fame person, &c.; which discharge of the faid S. M. is the fame efcape as that now complained of, &c. Replication, that the bail mentioned in the rule in the laft plea fet forth to have been put in and justified, were put in for the faid S. M., and justified as in an action brought by the plaintiff against the faid S. M. only, and not in the jaid action fo brought against the faid S. M. and the faid J. O., as by the record of the recognizance of fuch bail, &c. appears. And further, that after the making of fuch rule, and before the defendant discharged the faid S. M. out of Q2 * than one action at the fuit of A.: held that the marthal was And liable in an his escape. *[293] |