In the subsequent case of Baylis v. Manning (a), an application was made for leave to amend the count, upon an affidavit, stating that inquiry had been made in the country respecting the title, and that the demandant had been misinformed, in consequence of which, the mistake in the count had arisen, and that unless the amendment was allowed, the demandant would be barred by the statute of limitations; but the court refused to allow the amendment, saying, that they considered the case as less favourable than the application in Charlwood v. Morgan. In Maidment v. Jukes (b), the court, on the authority of Charlwood v. Morgan, refused to allow the demandant, who had discovered a mistake in his count, to discontinue. In a very late case of a writ of right brought in the Common Pleas, at Lancaster (c), after demurrer to the count, because the words, "as of right," were omitted (d), upon application to amend, and argument before Mr. Justice Bayley and Mr. Baron Wood, leave was granted, Wood, B. observing, that he could not agree that writs of right were to be discouraged by the judges, while they remained part of the law of the land, and that he was not for holding it so strict, but that the rule to amend was sometimes to be allowed. The application in this case was supported by an affidavit of merits. In writs of right. In dower. In dower, as it has been already stated (e), the writ is general, that is, it demands only "the reasonable dower of the demandant," Unde nihil habet. without specifying the particular lands, but in the count the particular lands out of which she claims her dower, must be specified. The count ought to be of a third part of the whole premises, as the "third part of two messuages, one hundred acres of land," &c., for if the demand be of "three messuages and fifty acres of land” it is bad, though three messuages and fifty acres of land be a third part of the whole estate. (f) If the count, as usual, demands a third part, &c., and the lands are of gavelkind tenure, the tenant may aver them to be so, and plead in bar, that by custom the wife is entitled to be endowed of a moiety, dum sola et casta remanserit. She should have demanded a moiety dum sola, &c. (g) The count must describe the lands with such (a) 1 N. R. 235. (b) 2 N. R. 429. (e) Goore v. Goore, MS. 1820. (d) See ante, p. 177. (e) Ante, p. 16. (ƒ) Whelpdale v. Whelpdale, 3 Lev. 169. Com. Dig, Pleader, (2 Y. 2). 2 Saund. 43, d. (note). (g) Hunt v. Gilborne, 1 Leon. 138. Cro. Eliz. 121. S. C. Robins. on Gavel, In dower. Undenihil habet. In formedon. In assise. certainty that seisin may be delivered by the sheriff; and therefore if it demand a third part of three tenements it is bad. (a) There is no averment of the production of suit at the end of the count. (b) If there be a mistake in the count, it may be amended, even after demurrer and argument. (c) The demandant in dower may abridge the demand in her count, and where the demand is of dower in two vills, may, it seems, abridge as to all the lands in one of the vills. (d) In formedon, as it has been already shewn (e), the demandant must set out his title in the writ, and the count therefore pursues the writ mutatis mutandis, being a fuller statement of the title. It is not necessary to allege any esplees in the writ, though they must be alleged in the count, and the rule given in Lutwyche (f) is, that when a fee simple is demanded, the esplees must be laid both in the donor and the donee; but that when an estate tail only is demanded, it is sufficient to lay them in the donee, as in formedon in the descender. In formedon in the remainder, when a fee is demanded, it is necessary to lay esplees in the donor. (g) In formedon of a copyhold, the demandant must count of a gift made by the copyholder, and not by the lord. (h) In deducing the demandant's title, it is always stated in the count that the right of the tenements descended from one ancestor to another, which may be done, although such ancestors have been actually seised under the entail. (i) The count or declaration in assise is called a plaint, and differs in several respects from the count in other real actions. It need not be so certain as in other actions, because the judgment is to recover per visum recognitorum, and if the plaint be but so certain that the recognitors may put the demandant in possession it is sufficient (k); but a plaint de uno tenemento is not good. (1) 179. 2 Saund, 44, (note). Com. Dig. 342. Hearne, 503. Bull. N. P. 116. (a) Kent v. Kerry, 8 Mod. 355. 2 (b) See Stephen on Pleading, 428. (d) Com.Dig.Ab. (A. 2). ante, p. 176. (g) Fitz. Ab. Formedon, 31, and aocording to Br. Ab. Explees, 10, in the original remainderman, s. v. 6 Rep. 4. (h) Paulter v. Cornhill, Cro. Eliz. 361. 2 Watk. Cop. 36. (2d. edit.) (i) Booth, 145. (k) Dean, &c. of Bristol v. Clerk, Dyer, 84, b. Bac. Ab. Ass. (D). Bull. N. P. 121. Br. Ab. Plaint, 4. (1) Thyn v. Thyn, Style, 77. It is unnecessary to state a title in assise, where it is brought for land, possession, without any other title, being sufficient: and the plaint only stating that the defendant disseised the plaintiff of a messuage, &c. (a) But where the assise is brought for an office, a title must be shown in the plaint (b); so in an assise for a rent charge, or rent-seck, which is against common right (c), and so in an assise of tithes (d), and of common. (e) It appears to be necessary in an assise for a newly created office, which cannot be maintained unless the office has a fee or profit annexed to it, to shew such fee or profit in the plaint. (ƒ) The demandant in an assise may abridge his plaint at any time before the jury give their verdict. (g) The plaint being engrossed on parchment, is to be read in court, after the recognitors have been called; and the plaintiff and defendant being also called, the defendant may crave time to plead, and the court, after the assise is arraigned, will adjourn, to give him an opportunity of preparing his plea. (h) In assise. The count in a writ of entry sur disseisin, brought upon the In writs of entry. seisin of the demandant himself, after reciting the writ, states that the demandant was seised of the land, &c. in his demesne, as of fee and right, in the time of peace, in the time of such a king, by taking the esplees, &c., and of which the tenant unjustly disseised him, &c. (i) If the action be brought by tenant in tail, or tenant for life, it is said that both in the writ and count the demandant may state generally, that he was seised as of freehold (k); but it appears to be more regular to show the commencement of the particular estate, both in the count and writ. (1) If the action be brought on a disseisin done to the demandant's ancestor, the derivative title from that ancestor must be stated in the count; as the writ may be brought either in (a) Windebanke v. Beere, 1 Sid. 73. Jenk. Cen. 42. Bac. Ab. Ass. (D). Br. Ab. Plaint, 1. (b) Vaux v. Jefferen, Dyer, 114, b. Hunt v. Allen, Dyer, 149, a. Savier v. Lenthal, 3 Mod. 273. Salk. 82. Comb. 173. Lilly's Ass. 93. S. C. variously reported. Lilly's Ass. 41, 70, 76, 94. (c) Booth, 270. Brediman's case, 6 Rep. 56, b. but assise for rent generally shall be intended for a rent service, Br. Ab. Plaint, 1. Dyer, 83. (e) Br. Ab. Assise, 199. Plaint, 1. (g) 1 Rol. Ab. 270, 1. 32. 1 Dan v. (h) Lilly's Ass. 33. (i) Rast. Ent. 276, b. Booth, 176. 3 Chitty on Plead. 620. (k) Dyer, 101, a. Booth, 177. F. N. B. 192 A. 2 And. 100. (1) F. N. B. (d) Dean, &c. of Bristol v. Clerk, Ent. 277, b. 191 E. note (a). Rast. In writs of entry. In quare impedit. Title. the per, the per and cui, or the post (a), the count must be framed accordingly. The count in the other writs of entry, except in the statement of the injury, resembles the count in a writ of entry sur disseisin. (b) In a writ of entry sur disseisin in the post, the court refused to amend the writ and count by altering the name of the disseisor. (c) As soon as the defendants in a writ of quare impedit have appeared, the plaintiff must count against them; and if one of several defendants alone appears, the plaintiff may declare against him with a simul cum, and if the defendant pleads ne disturba pas, a writ may be awarded to the bishop, with a cesset executio, until the plea between the plaintiff and the other defendants is determined. (d) In framing the declaration, four points are to be particularly attended to. 1. The title of the ancestor or other person, under whom the plaintiff claims, who last presented to the benefice. 2. The derivative title. 3. The presentation by the plaintiff, or some person under whom he claims: and 4. The disturbance. (e) 1. The plaintiff in quare impedit must allege a title, for without that he does not shew his right to recover. (f) And as in other cases of statement of title, a seisin in fee must be alleged, and if the plaintiff has only a particular estate he must deduce his title from the tenant in fee. (g) It appears formerly to have been held that it was sufficient to state a presentation only, in the person from whom the plaintiff claimed, because a presentation was evidence of a seisin in fee, even an usurper gaining a seisin in fee by a wrongful presentation; but now since the statute, 7 Anne, c. 18, no estate is devested by an usurpation, and it therefore seems to be necessary, in all cases, to state a seisin in fee. If the plaintiff have a less estate than a fee, he must deduce his title from the owner of the fee: thus the tenant in tail of an advowson must allege a title in fee in the donor, and derive his title from him. (h) A title to the advowson must be alleged in case (a) Ante, p. 89. (b) See the form of the count in in- (c) Hull v. Black, 4 Taunt. 572, but see Dyer, 101, a. (d) 1 Brownl. 158. (e) See Mallory's Q. I. 200. (f) Digby v. Fitzherbert, Hob. 102. R. v. Bp. of Worcester, Vau. 57. (g) Ibid. (h) Coppledick v. Tansy, Hutt. 31, Countess of Northumb. case, 5 Rep. 98, a. Com. Dig. Pleader, (3 I. 4). of the king as well as of a common person (a); and the king must In quare impedit. allege in what right he is seised. (b) But if the king entitle himself to a presentation by a simoniacal contract, it is sufficient to allege a presentation by such a person cui de jure pertinuit, without shewing what title he had to the advowson, for the king is a stranger to the title. (e) The plaintiff must shew a title in himself before the avoidance, and therefore if the acceptance of a plurality, by which the church is void, be alleged at a day before the grant of the next avoidance, in an action by the grantee, it is bad. (d) And such grantee must shew that the avoidance in question is the next avoidance. (e) The plaintiff must shew whether the advowson be appendant, or in gross. (f) If the plaintiff claim a right to present against common right, he must shew the commencement of it, as if he allege presentation by turns, he must shew how it commenced, whether by prescription, composition, or otherwise (g); but where the plaintiff claims a turn to an advowson appendant, he need not shew the commencement of the presentation by turns, whether by prescription, composition, or otherwise, for the appendancy imports a prescription. (h) A composition to present in turns may commence between parceners, jointenants and tenants in common, by record or by deed, and between parceners by parol. () And after every tenant in common, &c. has presented in turn, the composition is executed, and the composition or indenture need not be shewn in the declaration. (k) By statute 7 Anne, c. 18, if coparceners, or jointenants, or tenants in common, be seised of any estate of inheritance in the advowson of any church, &c., and a partition is made between them to present by turns, every one shall be taken and adjudged to be seised of his or her separate part of (a) Vaugh. 57. (b) The Queen and the Bp. of York's case, 1 Leon. 227, thongh the writ may be general, see 1 Saund. 186, d. (note 1). (c) Semb. 2 Lut. 1093. Com. Dig. Pleader, (3 I. 4). (d) Agard v. Bishop of Peterborough, Dyer, 129, b. and Wats. Clerg. Law, 88. (e) Ibid. (f) Semb. Lutw. 1. Vaug. 7, 8. Comi. Dig. Pleader, (3 I. 4). (g) Cheverton's case, 3 Leon. 168, and see Birch v. Bp. of Litchfield, 3 Bos. and Pul. 444. (h) Eveleigh v. Turner, Dyer, 299, a. Moor, 867. (i) Bp. of Salisbury v. Phillips, 1 Salk. 43. Carth. 505, S. C. (k) Ibid. Dyer, 29, a. |