1804.

and Wife. 2d. Objection.

[ 280 ]

tenant pleads a feifin in fee, without saying de juře. Pl. 5, states the feifin ut de feodo et jure hospitalis; pl. 6, 7, and 8, ut DOWLAND de feodo in jure Cantaria. The entries, therefore, in Juris against SLADE utrum are in both ways, which fhews that the variation is not material. As to the second ground of error, on the repugnance of calling Hannah Ball the heir of her brother Thomaş Gamlyn, the elder, when it appears that he had a fon, William Gamlyn, who furvived him; if the word heir be rejected the descent will be well pleaded. But it will be urged that all allegations of title in a writ of right are material and must be proved, and that as both the allegation that the right defcended from Wm. Gamlyn to Hannah Dowland, and the allegation that Hannah Ball, as heir to whom Hannah Dowland claims, was the heir of her brother Thomas Gamlyn the father of the said Wm. Gamlyn, cannot by poffibility be proved, the count is bad for the repugnancy in ftating the title, The objection, however, fuppofes the word heir to denote neceffarily a perfon in whom an estate actually vefted by defcent; but it does not; and if it did, it not being neceffary to ftate in terms who was the heir of Thomas Gamlyn the elder, that word may be rejected as furplufage. It is a general rule in pleading fo to conftrue words as to make all the parts confiftent if poffible. The word heir is often used in pleading to denote the perfon through whom a fucceffion or defcent is derived, and in whom, if living at a certain period, the eftate would have vefted, but did not veft, Co. Entr. Quare Impedit, pl. 1. Winch's Entr. 510. Formedon in Remainder, ibid. Quare Impedit. 865. 911. Co. Entr. 181. Droit, pl. 1. tit. Formedon, pl. 18. Hearne's Pleader, Formedon in Reverter, 501, b., and Winch's Entr. 506. In the two laft precedents if the count could have been avoided by fhewing that the brother of the donor was not his heir as alleged in the count, it would have been fufficient to have pleaded that the donees were the daughters of the donor; but in both cafes the plea goes on to fhew a recovery fuffered; and in the latter it even appears that one of the daughters died without iffue before the recovery, by which her moiety vested in her fifter in fee, In the prefent cafe, however, it was fufficient to have fhewn [281] that Hannah Ball was the fifter of Thomas Gamlyn the elder, without faying that he was his heir: for it could not have been prefumed that he had any other fons than those mentioned in the pleadings, or that he had any brother. The general cur

rent

tent of authorities omits the word heir in fuch cafes. Co. Entr. Ejectment, pl. 6. fo. 196. Quare Impedit, pl. 12. fo. 494. The word heir is a term of law; and the repugnance arifes from attributing to Hannah Ball a character in law which did not belong to her, not from attributing to her any relationship or degree of kindred inconfiftent with what was before attributed to her, nor in introducing any fact to fhew that a good title could not have been derived through the relationship attri buted before. Whether from the feveral relationships stated fhe were heir or not to her brother was a mere legal confequence, upon which no iffue could have been taken; and it may therefore be rejected as a nugatory allegation of a matter of law, contrary to the facts ftated, which are fufficient to entitle the demandant to recover. French v. Wiltshire, Andr. 67. Com. Dig. Pleader, C. 28, 29. 1 Ventr. 119. 1 Lutw. 25.

Dampier for the defendants in error, the tenants: 1ft, The feifin fhould have been ftated as de feodo et jure. In a proceeding not much in ufe the form of the precedents without one exception (for the precedent in Raftal, tit. Falfe Judgment, pl. 9. is found to be defectively stated in the book, upon reference to the roll itself) is entitled to great weight. Of thefe there are eleven prete tents in Liber Intrationum (a); one in the notes to Fitz. Nat. Brev. (b, which are by Lord Hale; one in Cro. Car. 310., five in Coke's Entr. (c), and feventeen in Rafal's Entries (e), in all of which the feifin is ftated to be de feodo et de jure. The precedents in Formedon and Juris utrum do not apply neither the tenant in tail in the one, nor the parson in the other, have the zubole eftate in the land in them, which is derived from the donor in tail in the one and the gift in frankalmoigne in the other. The donation or gift, the root and origin of the claim, must be fhewn, and it is not fufficient merely to fhew a feifin of the estate difplaced and turned to a right. The iffue is not on the right. In Formedon the iffue is non dedit. A formedon may be founded on a devife. In most of the precedents in formedon the feifin of the donor is not stated, but merely the gift; except where, as in one precedent in Coke's Entries, the whole eftate is claimed in formedon in reverter.

(a) 1. b., 2. a. & b., 22. 1. b., 107. 130. b., 150. b., 151. b., 95. b. (b) P. I. n. a. I. (c) 181. a.

(d) 241. b. pl. 1, 2, 3. 5., 244. b. pl. 2, 3, 4, 5., 246. a. pl. 2, &c. 3, 4, 5, 224. a. pl. 1, 2.9.130. b. pl. 3., 343. b. pl. 8, 9, &c., 273. a. pl. 8.

But

1804.

DOWLAND againft SLADE

and Wife,

[ 282 ]

againft SLADE and Wife.

1804. But the great majority of the precedents in formedon state the feifin of the eftate tail to be de feodo et de jure. Of DOWLAND feventeen precedents in Coke's Entries, fourteen are de jure ; of seven in Winch, all are de jure; of nineteen in Liber Intrat., eighteen are de jure; and of thirty-two in Raffal, thirty are de jure; and in one of the remaining two the perfon last seised in remainder, whofe eftate is displaced, is ftated to be feifed de jure; and frequently the first taker has only an eftate for life when the feifin de feodo et de jure cannot be ftated. The three inftances in Coke's Entries where de jure is omitted are of eftates given to uses before the statute; when the eftate-tail being given to the feoffees to ufts, and they not having the ufufruct but only the legal eftate, might be the reason why [283] the feifin was not stated de jure. As to the two paffages cited

from Littleton, it may be true that one who has no right may be eftopped from fetting up the wrongful feifin of the other, who has a better right against him; but it does not follow that the count is not to be in the general form. It may be confidered in law as a rightful feifin as against a wrong-doer who has no right. This objection, however, does not reft merely on the precedents, but is founded in substance, on confidering the nature and object of a writ of right, the issue joined in it, and the effects of it. A writ of right is to recover the whole estate in the land, and to put the demandant in poffeffion, in full feifin, notwithstanding any inferior intervening rights, which the tenant, or those under whom he claims may have acquired by length of poffeffion. It is not therefore unreasonable that the forms of fuch a proceeding should be ftrictly obferved. The right to lands is divided into the jus poffeffionis and the jus proprietatis. The former of which is fometimes used to denote such a right as may be enforced by a poffeffory real action; but as applied. to a writ of right, the jus poffeffionis is immediately confequent upon the recovery of the jus proprietatis, and the Court enforces it by the writ of feifin upon its being found by the grand affize which of the parties has the majus jus. The object therefore is to acquire both; but the point of inquiry is as to the right. It is what the demandant in all the precedents afferts and claims, and what the tenant denies in terms; it is what the mife is joined upon, what the grand affize is charged with, and what the judgment decides. It would be ftrange then if the demandment need not claim the land as his right and inheritance in the writ, or that the feifin by virtue of which he claims to

recover

1204.

DOWLAND

against

SLADE and Wife.

recover the right need not be alleged to be a feifin of right, or that he should recover a feifin* of right which is not alleged to be fuch; or that that which, for aught appears on the record, was not a feilin of right in the ancestor fhould become a right in the heir, and by this recovery be converted into a feifin of right. The form of the writ of right is given in 1 Reeves' Hift. of Law, 399. of [#284 ] the count in p. 427, 8., as it is in Bracton, and of the plea in p. 475, 6, &c. From thence it appears that the demandant could not have the jus proprietatis unless his ancestor were feifed of the right as well as had the poffeffion: the feifin of the right is therefore a fubftantial allegation. If the words de jure could ever have been omitted with propriety, it might be expected to be in the cafe of copyholds, where the nature of the tenure vests the eftate in the lord, though the tenants by custom have acquired a permanent intereft and feifin. Yet where a petition in the nature of a writ of right for a copyhold is fued, the nature of the remedy, which requires the feifin to be ftated as of right, overcomes the difficulty; and the feifin is ftated to be "in dominico fuo ut de feodo et de jure ad voluntatem domini, fecundum confuetudinem manerii," &c. (a).

On the fecond objection, (after premifing that the court of ancient demefne where the demurrer was filed was not a court of record, which appeared by the writ of falfe judgment in C. B., and by 4 Inft. 269.; and therefore neither the ftats. 27 Eliz. c. 5. nor the 4 Ann. c. 16. extend to it; so that it was competent to take any objection to the count which might in a court of record be made on fpecial demurrer :) he contended, that in all actions by an heir, he muft fhew how he is heir (b), and a fortiori in a writ of right (c): and if fo, he muft fet out his defcent formally, and in fuch a way as to be capable of proof; or it may be specially demurred to. And Mr. Reeves (d) in his hiftory, &c. cites Bracton, 375. to fhew that if any one were omitted in the defcent, or if there were any error in the perfon or the name of any one mentioned in the defcent, the action abates. Now here it is not difputed that Hannah Ball, through whom the demandant makes title, is improperly stated to be the beir of Thomas Gamlyn the elder, which could not be, as he was her brother, and he had a fon who, it appears from another part

(a) Co. Entr. 206. b. pl. 10. Rafal's Entr. 130. b.

(b) 1 Salk. 355, and Hob. 333.

(c) 1 Reeves' Hift. of Law, 431, 2., and Bra&. 374., there cited.. (d) Reeves' Hifl. of Law, p. 432.

[285]

of

1804.

of the count, furvived him. If this be ftated as matter of fact, it is incapable of proof; if as matter of law, it is erroneously DoWLAND stated. In Polyblank v. Hawkins (a), where the husband of

againft SLADE

and Wife.

tenant in fee declared in covenant on a seifin of himself in his demesne as of freehold in right of his wife, it was holden bad on fpecial demurrer; for that he ought to have stated that he and his wife in right of his wife were feifed in their demefne as of fee ; though the objection there was more critical than in the present cafe. None of the precedents referred to è contrà were tried upon fpecial demurrer. He concluded with referring on this point to the authority of the Court of C. B., who had decided upon the validity of this objection.

Abbott in reply, on the latter point, obferved as to the cafe of Polybank v. Hawkins, that the error there was in ftating the feifin, which was the root of the title. On the first point he faid, that the mife was not joined on the pofitive right, but whether the demandant or the tenant had the better right, and the verdict and judgment follows the mife. That the judgment only concludes the two parties on the record, for it is either [286] that the demandant shall hold the land against the tenant, or that the tenant fhall hold it quit of the claim of the demandant. [Upon a question put, whether the tenant might not take the mife on the feifin only,] he answered, that that was only done, as he could find, upon tender of the demy mark, to inquire of the feifin of the demandant's ancestor in the time of the king alleged. But that there was one precedent in Coke's Entries (b) which runs thus: "Et præd. J. C., &c. per. A. B. att. fuum veniunt et defend. pro præd. R. K. et etiam (which by reference to the roll appears to be a misprint for seisinam) præd. W. R. de quo," &c. and prays in aid, &c.

Lord ELLENBOROUGH C. J. in this term delivered judgment. This was a writ of error brought upon a judgment in the Court of C. P. on a writ of false judgment returnable in that court, complaining that false judgment had been given in the court of the manor and forest of Gillingham, in a plea of land between these parties. The sheriff, in his return to the writ of falfe judgment states, that he had recorded the plaint, and sets out the proceedings in a writ of right clofe, and the count founded thereon; and by which Thomas Dowland by his attorney de