Of the Count or Declaration. Of the count In general, the rules of pleading which regulate the form of the declaration in personal actions, apply also to the declaration, or count as it is more usually tèrmed, in real and mixed actions. in general. General writ and special count. Time and place. Seisin and esplees. It has been already stated (a) that there are certain real actions in which the writ may be general, and the count special. (b) The particular instances in which this is allowed will be mentioned in the proper place. In real or mixed actions, it is not usual to insert a year, day, and place, in the count or declaration, as in personal actions (c); but the king's reign is generally mentioned; and where by the statute of limitations, the action must be brought within a certain time, an averment is added, that the demandant or his ancestor was seised within that time. (d)> In most real actions, it is necessary in the count to state, and, if traversed, to prove, the seisin of the demandant, or of the ancestor from whom he claims, and, in general, it is also necessary to aver that he was seised by taking the esplees or profits to the value, &c. (e) In some actions, indeed, as in waste, in which land is not expressly demanded, a seisin is not required to be stated, and therefore the taking of the esplees is not averred.(ƒ) So in those actions in which, though seisin is alleged, it is not traversable, the taking of the esplees need not be stated. (g) Thus, it need not be stated in a writ of escheat. (h) Nor in a cessavit. (i) In a writ of right of advowson, the taking of the esplees must be alleged, not in the demandant himself, but in the incum (a) Ante, p. 16. (b) Com. Dig. Pleader, (C. 15). Vin. Ab. Declaration, (K). (c) Br. Ab. Count, 59. Com. Dig. Pleader, (C. 7). (d) Herne v. Lilborne, 1 Bulstr. 162. Cro. Jac. 293. Yelv. 211, S. C. Br. Stat. of Lim. 13. Com. Dig. Temps, (G. 1). (e) But the taking of the esplees is not traversable. Br. Ab. Esplees, 6. (ƒ) Br. Stat. of Lim. 20, 21. Com. Dig. Temps, (G. 10). (g) Com. Dig. Temps, (G. 10). bent. (a) The taking of the esplees is alleged to have been tempore pacis, for if taken tempore belli, when the courts of justice are not open, it is insufficient. (b) Of the count in general. title. The mode of stating the title of the plaintiff or demandant in Statement of the count, varies according to the nature of each particular action, as with regard to the most important real actions, will be seen in the following pages. There are, however, certain rules which apply to all real actions. Thus it is an established rule, that in all real actions brought by an heir on the seisin of his ancestor the demandant must shew coment heir, or how he is heir. It is not enough to say that he is heir to such a one generally; but he must set forth, specially, in what manner and how he is heir, and that too with accuracy and correctness, otherwise it will be bad on demurrer, or after judgment by default, or on demurrer. (c) In those cases, however, in which the omission or inaccuracy does not appear upon the face of the count, and there is no general issue which puts in issue the whole of the demandant's title, as stated in his count, the tenant may take advantage of the omission, by pleading it in abatement. Thus in a formedon in the descender, in which it is necessary to convey the descent of the demandant from the original donee, the omission of any of the ancestors who ought to be stated, may be pleaded in abatement (d); the usual plea of non dedit puts in issue only the creation of the entail, and admits the descent as stated. So in waste, where the plaintiff entitles himself to the reversion in fee, the tenant may plead a devise to the plaintiff in tail. (e) In some cases, in real actions, it is necessary for the demandant Count de novo. to count de novo, where a new tenant has been admitted in the course of the suit: thus where, after declaration, the reversioner prays to be received, in an action brought against his tenant for life, and is received accordingly, the better opinion appears to be that the demandant must count against him de novo. (f) And (a) Co. Litt. 17, b. (b) Co. Litt. 249, b. (c) 2 Saund, 45, c. (note). Slade v. Dowland, 2 Bos. and Pul. 570. 5 East, 272, S. C. in Error. Charlwood v. Morgan, 1 N. R. 64, on demurrer. Dumsday v. Hughes, 3 Bos. and Pul. 453; and see 2 W. Black. 1100. The king need not shew cosinage, in a suit for things belonging to the crown. Co, Litt. 15, b. (d) Buckmere's Case, 8 Rep. 88, a. ante, p. 56, and post, in title "Pleas in Abatement." (e) Com. Dig. Pleader, (3 O. 10). (f)2 Inst. 345. Booth, 70. Moor, 29. But see Moor, 34, and see in title "Receit." See also Vin. Ab. Declaration, (K). Of the count in So when the tenant vouches, and the vouchee enters into the general. warranty, the demandant must count against him de novo, as against the tenant. (a) So after view granted. (b) Damages. Abridgment of plaint or count. In a writ of right. In general, in real actions, the plaintiff does not demand damages in his declaration, as damages are not recoverable in any real action, strictly so called, and even in those actions in which damages have been superadded by statute, the old form of declaring remains (c); but, in some mixed actions, the plaintiff demands damages in his declaration, as in a warrantia chartæ (d), in a quare impedit (e), and in waste. (f) There are some real actions in which the demandant may abridge his plaint or demand. Thus in assise or dower, in which the writ is general, complaining of a disseisin done to, or demanding dower out of, the freehold generally, if the tenant pleads non-tenure, jointenancy, &c. to part of the demand, the demandant may abridge or narrow his demand to the residue, and the writ will still remain good; for although he abridges some acres, yet the writ remains good as to the rest, it being the freehold still; but in a præcipe quod reddat, where a certain number of acres is demanded, the demandant cannot abridge, for he would falsify his writ; and where a writ is acknowledged to be false in part, it must abate for the whole; and even in an assise de libero tenemento in A. and B., the plaintiff cannot abridge his plaint as to all in B, for the writ would be made false. (g) The plaintiff in assise may abridge his demand at any time before verdict. (h) An abridgment seems to be in the nature of a nolle prosequi as to part. (i) In counting upon a writ of right, the demandant must shew in himself a right, in fee-simple, to the lands demanded; which is done by averring in himself, or his ancestor from whom he (a) Com. Dig. Voucher, (E); and see post, in title "Voucher." (b) Davis v. Lees, Willes, 345. See post, in title "View.” (c) 2 Inst. 286. Pilfold's Case, 10 (d) Roll v. Osborn, Hob. 23. (g) Br. Ab. Abridgm. 12. Chetham v. Sleigh, 3 Lev. 68. Com. Dig. Abridg. Booth, 29. 2 Saund. 44, a (note). See the entry of Abridgment of Demand in Dower, Lev. Ent. 76. (h) 1 Rol. Ab. 270, 1. 33. Br. Ab. Abridg. 15. Quære before judgment, Keilw. 116, b. Dyer, 88, a. (i) 2 Saund. 44, a (note). See more as to abridging, in Com. Dig. Abridg. claims, a seisin in his demesne, as of fee and right; and if he declares on the seisin of his ancestor, by shewing a descent of the right to himself, as heir. The seisin to support a writ of right must, as it has been already stated, be an actual seisin (a), and must be averred in the court to have been by taking the esplees, which are evidence of actual seisin. If the writ be brought by a bishop, he must lay the taking of the esplees in himself or his predecessor. (b) A purchaser, as we have seen, cannot have a writ of right, except upon his own seisin, for there is no privity between him and his vendor (c), and where the demandant claimed as heir to a devisee in fee in remainder, who took by purchase and died before the determination of the particular estate for lives, upon which his remainder was expectant, so that he was never seised of the lands, and upon his death the remainder descended to the demandant as his heir, who, upon the death of the tenant of the particular estate, brought a writ of right without alleging esplees in himself, judgment for the demandant was arrested. (d) It is necessary to state, that the person in whom the esplees are laid, was seised as of right. (e) In writs of right. Esplees. tion. It is necessary that the seisin should be shewn in the count to Time of limitahave been within sixty years, if the writ be brought on the seisin of the ancestor, or within thirty years, if brought on the demandant's own seisin, by statute 32 Hen. 8, c. 2. (f) If the action be brought by the demandant as heir, the count Title by demust state how the demandant is heir (g), whether as son, daugh- scent. ter, brother, or cousin; and if cousin, it must shew how cousin. Thus where the count stated, that the lands descended to four women, as nieces and co-heirs of J. S., without shewing how they were nieces, it was held bad upon demurrer, for the four persons stated to be nieces and co-heirs of J. S., might be either. four daughters of one brother or sister of J. S., or daughters of four several sisters of J. S. () And if the demandant in convey In writs of right. Amendment. ing his title, through a female, describes her as sister and heir of The writ of right differs in the conclusion of the count from other actions, for instead of the usual averment, " and therefore he brings his suit," &c., it ends," and that such is his right, he offers," &c. In some late cases, the court of Common Pleas has refused to allow an amendment in writs of right. In Dumsday v. Hughes (d), the court observed, that it was not of course to amend, but that the demandant ought to make out a case by affidavit. A rule to shew cause for an amendment was granted, but afterwards discharged on account of the insufficiency of the affidavit. In this case the application to amend was after joinder in demurrer and argument. In Charlwood v. Morgan (e), an application was made, after demurrer, to amend a mistake of the pleader, in inserting a wrong christian name, in conveying the descent. Mansfield, C. J. said, that considering the nature of the proceeding by writ of right, how much it had always been discouraged, and how much tenants had been permitted to avail themselves of every advantage to defeat the claims of demandants, he was of opinion, that unless some precedent of such an amendment could be produced, the soundest exercise of the discretion of the court would be, not to allow of such amendment. There had been in this case an adverse possession of more than forty years. Leave to discontinue was also denied on the ground that the reasons for refusing the amendment equally applied to any other matter of favour in such a proceeding. (ƒ) (a) Slade v. Dowland, 2 Bos and Pul. 570. 5 East, 272. S. C. (b) It should be observed, that this was a case of error from a court not of record, and that, therefore, no question arose as to the statutes of 27 Eliz. c. 5, and 4 Anne, c. 16,extending to it. 5 East, 284. (c) Charlwood v. Morgan, 1 N. R. 64. (d) 3 Bos. and Pul. 453, cited above. (e) 1 N. R. 64, cited above. (f) In Scott v. Perry, 3 Wils. 206, (differently reported in W. Black. 758,) the court gave the demandant in a formedon, (which is a writ of right,) leave to amend the writ on payment of costs, the tenant consenting. |