Act of January 10, 1818-January 1, 1820. R. C. ch. 118.

tions and boundaries of each shall be inserted therein. To which count the tenant may(b) plead in this form, or to this effect:

And the aforesaid C. D., by H. 1., his attorney, cometh and defendeth the right of the said A. B., when and where it behoveth him, and all that com cerneth it, and whatsoever he ought to defend, and chiefly the tenement aforesaid with the appurtenances as of right, namely tenement, containing

of land in the county of E., and bounded by putteth himself upon the assize, and prayeth recognition to be made, whether The hath greater right to hold the tenement aforesaid with the appurtenances, @ he now holdeth it (or them,) or the said A. B., to have it as he now demandeth it (or them.)

And to such plea the replication shall be in this form, or to this effect:

And the aforesaid A. B., in like manner, putteth himself upon the assia. and prayeth recognition to be made whether he hath greater right to hold the tenement aforesaid, as he demandeth, or the said C. D. as he holdeth it, (œ them.)

Whereupon, twelve good and lawful men, qualified as jurors are required to be, shall be elected, tried and charged, as the manner is, to make recognition of the assize; which charge shall be in this form, or to this effect:

You shall say the truth, whether C. D. hath more right to hold the tenement which A. B. demandeth against him by his writ of right, or A. B. to have it (or them) as he demandeth.

And at the trial any matter(c) may(d) be given in evidence which might : have been specially pleaded. And upon the verdict, or in case of a demurrer,

(b) Non-tenure, as to its admissibility as a plea in abatement, and as evidence where the mise is joined on the mere right. See Hyers et al. v. Green, 2 Call, 555; Hyers v. Wood, 2 Call, 574.

These cases were reviewed and considered in Bolling v. The Mayor of Petersburg, 3 Rand. 563, in which it was decided, that where the mise is joined on the mere right, it is not competent for the tenant to give in evidence non-tenure, or any other matter in abatement; that the common law was not changed by this act, as to this matter, and therefore such matters must be specially pleaded, as at common law.

In a writ of right brought by several demandants, and the mise joined on the mere right, and the jury find for the demandant, and that one of the demandants was dead before the institution of the suit, leaving children; this latter finding, "of the death, &c.," being out of the issue and matter in abatement which should have been pleaded, will be rejected as surplusage, and the other finding received, and judgment rendered thereon; and so, if the jury add that one of the demandants was tenant in common with the others, and therefore could not sue jointly with them. Garrard & al. v. Henry & al. 6 Rand. 110.

Where a writ of right is brought by demandants who claim as heirs, and the mise is joined on the mere right, evidence at the trial that there is another heir besides those named in the writ and count, will not entitle the tenants to a verdict. The tenants,

to avail themselves of such matter, should plead it in abatement. Linton et al. v. Bartly et al. 9 Leigh, 444.

(c) (d) See Green v. Liter et al. 8 Cranch, 229, commented on and explained in Green v. Watkins, 7 Wheat. 31.

A writ of right brings into controversy only the titles of the parties to the suit, and is a comparison of those titles; either party may therefore prove any fact which defeats the title of the other, or shew it never had a legal existence, or has been parted from. The tenant cannot give in evidence the title of a third person, with which he has no privity, unless it be to disprove the seisin of the demandant. See Green v. Watkins, 7 Wheat. 27; and see Inglis v. The Trustees of the Sailor's Snug Harbour, 3 Peters, 99 133.

In a writ of right, where the demandant proves an actual seisin in deed, or pedis po sitis, the tenant cannot defend himself by shewing a better outstanding title in another; but where the demandant relies on a constructive seisin, the tenant may shew an elder patent or better title in another. Bolling v. The Mayor, &c. of Petersburg, 3 Rand. 563.

A disseisor may maintain a writ of right against a stranger, who cannot protect himself under the better right of the disseisee. Ibid.

A demandant in a writ of right, in like manner as a plaintiff in an action of ejectment, must recover on the strength of his own title, and cannot rely on the defect of

Act of January 10, 1818-January 1, 1820. R. C. ch. 118.

the like judgment shall be given, and upon such judgment the like execution awarded, as in case of a writ of right; and the party for whom judgment shall be given shall recover his costs of suit; and the demandant, if he recover his seisin, may also recover damages, to be assessed by the recognitors of assize, for the tenant's withholding possession of the tenement demanded. 1786, c. 59; 12 Stat. Larg. 345; 1792, c. 27, R. C.

2.2. Where the præcipe quod reddat shall issue from the general court, or a superior court of law, if return thereof be made that the tenant is not found in the bailiwick of the officer to whom it was directed, the demandant may sue forth a writ of exigi facias, in this form, or to this effect:

The commonwealth of Virginia, to the sheriff of E., greeting: We command you, that you cause C. D. to be required from county court to county court, until five courts be passed, if he doth not appear; and if he doth appear, then summon him that he be before the justices of our court, at

on the

day of the next court, to shew wherefore he hath not rendered unto A. B. tenement, containing of land, with the appurtenances in the county of E. And have you then there this writ. Witness, clerk of our said court, at

in the year

the

day of

And when the residence or last place of abode of the tenant shall be out of the county in which the land demanded lieth, a like writ of exigi facias shall also be directed to the sheriff of the latter county; and in either case a copy of such writ shall, within four weeks after the teste thereof, be printed in such public newspaper as the court wherein the suit is brought shall direct; and the said writ or writs of exigi facias being returned in due form, and being printed as aforesaid, if the tenant shall not appear at the court to which the same is or are returnable, judgment shall be entered, that the demandant recover his seisin against the tenant. Ibid.

3. § 3. Where the præcipe quod reddat shall issue from the court of a county, city or borough, if return thereof be made, that the tenant is not found in the bailiwick of the officer to whom it was directed, the demandant may sue forth a new præcipe every court for five courts following, successively, if the tenant be not by one or other of them before summoned; and when the residence or last place of abode of the tenant shall be out of the county, city or borough in which the land demanded lieth, a testatum præcipe shall also be directed to the sheriff or proper officer of the latter county, city or borough; and, in either case, a copy of the first of the said five præcipes shall, within four weeks after the teste thereof, be printed in such public newspaper as the court wherein the suit is brought shall direct; and a copy of that and every of them shall, within fourteen days after the teste of each, be set up at the door of his courthouse, by the officer to whom it shall be directed, and who, by an endorsement on such writ, shall be required by the clerk to do so; and return of the said five writs being made, that the tenant is not found in the bailiwick or bailiwicks of the officer or officers, to whom they were directed, and that they had been set up as is before directed, and the first of them being printed as aforesaid, if the tenant shall not appear at the court to which some one of the said writs was returnable, judgment shall be entered, that the demandant recover his seisin against the tenant; but if the tenant against whom, without having appeared, or without having been summoned, any such judg

title in his adversary. Bradstreet v. Clarke, 12 Wend. 602.

A special verdict may be found where the mise is joined on the mere right. Shaw v. Clements, 1 Call, 429.

On the mise joined on the mere right, under a count for the entire right, a less quantity than the entirety may be recovered by the demandant. Inglis v. The Trustees of the Sailor's Snug Harbour, 3 Peters, 99-134.

Act of January 10, 1818-January 1, 1820. R. C. ch. 118.

ment shall be rendered, shall be out of Virginia at the time of the suit brought the judgment shall be no bar to an action commenced by him, or any claining under him, to be restored to the land recovered, within a year and a day after he or they shall come into the country, or, remaining out of it, within seven years after the judgment; in which action, or in a separate one, damages may also be recovered. Ibid.

4. § 4. If the tenant, whether summoned or not, shall appear and afterwards make default, judgment shall be entered against him; and if, having been summoned, he shall not appear, the court shall make an order that, unless be appear at the then next court, judgment shall be entered against him, which shall be entered accordingly, if, a copy of that order being delivered to him, or left at the place of his usual abode, fifteen days or more before such nex court, and affidavit thereof being made, he shall not then appear. Ibid. [A nonsuit in a writ of right now depending, or hereafter brought, whether such nonsuit be suffered before or after issue joined, shall be no bar to a subsequen action for the same lands and tenements. Act of Feb. 11, 1824, Ses. Acts 1823-4, c. 24, § 2, p. 27; Sup. R. C. c. 151, p. 210.]

5. § 5. If the demandant or tenant, against whom any such judgment shall be rendered, at the time of the suit brought shall be an infant, a married woman, or a person of unsound mind, the judgment shall be no bar to another action, commenced within five years after attainment of full age, discoverture, or recovery of understanding, or within the same time after the death of such privileged person. Ibid.

Act of February 25, 1819—January 1, 1820. R. C. ch. 128.

6. 90. Actual possession need not be proved to maintain a writ of right. 1789, c. 28; 1792, c. 67, R. C.(2) [See ante, tit. LIMITATIONS, No. 3.]

(2) A writ of right cannot be sustained by a devisee, on the seisin of his testator. Williams v. Woodard, 7 Wend. 250, and authorities there cited. But this is not the law of Virginia: here, a writ of right may be

maintained by a devisee, on the possession or seisin of his testator: and if the demandant die pending the suit, his devisees may have the cause revived in their names. Tay lor's devisees v. Rightmire, 8 Leigh, 468.