made to him for the term aforesaid by the said A. R. the reversion thereof to him the said A. and his heirs belonging; and this he is ready to verify: wherefore, inasmuch as (or, and says that he the said A. was seised of the said demanded premises in his demesne as of fee, and being so thereof seised before the commencement of this action demised the said premises to the said T. to have for the term of his life, saving the reversion thereof to him the said A. and his heirs forever; by force whereof the said T. was seised, and still is seised, of the said premises in his demesne as of freehold ; and so the said A. says that the said T. has nothing, and at the commencement of this action had nothing, in the said demanded premises but for the term of his life only, the reversion thereof after the death of the said T. to him the said A. belonging in manner aforesaid; and this he is ready to verify: wherefore, inasmuch as) he comes here into court before judgment rendered in the action aforesaid, ready to defend his right, and to answer in this behalf to the said D., he prays that he may not lose his right by the default of the said T. but that he may be admitted to the defence of his right in this behalf. And he is admitted accordingly: and thereupon the said D. demands against the said A. R. the tenements aforesaid with the appurtenances as his right and inheritance, and into which the said T. had no entry but by one F. &c. (as in the original count,) (i).

When the wife is received, on the default of her husband when they are impleaded together, the demandant does not count anew against her, as she was already a party to the suit; and it has been said that such new count was not necessary against a reversioner or remainder-man (k). But a contrary opinion was expressed in another case in the same year (1); and again in the 43 Eliz. (m). Some of the precedents in Rastel have a new count in such case, and in some it is omitted.

After the new count against the party received, or immediately on his appearance, if no new count is filed, he must plead in like manner as if he had been originally the tenant to the writ.

In the case above supposed, the suffering of a default

(m) Cro. El. 826. and see Com. Dig. Receipt (B. 2.)

CHAP.

IV.

by the tenant is sufficient to authorize the receipt of the reversioner, without the allegation of any other cause; but when the original tenant has appeared and pleaded, the reversioner must allege that he has pleaded collusively, or feintly, by covin with the demandant, in order to cause him, the reversioner, to lose his right. Precedents of this kind will be found in the different places before cited from Rastel.

The demandant may counterplead the prayer to be received; as follows:

And the said D. says that he ought not to be delayed from having his seisin of the said demanded premises, nor ought the said A. R. to be admitted to defend any right (or, his right) in the said premi ses, by reason of any thing by the said A. above alleged, because he says that the said A. has nothing, [and on the day of the purchase of the original writ in this action had nothing,] in the reversion of the said demanded premises; and this he is ready to verify: Wherefore the said D. prays judgment, and that seisin of the said demanded premises may be adjudged to him, with his costs.

And the said A. R. says that the reversion of the said demanded premises, after the death of the said T. [did, on the said day of the purchase of the original writ in this action, and still] doth belong to him the said A. in manner and form as he has above in that behalf alleged and of this he puts himself on the country.

In the English practice, when the reversioner or remainder-man was received, he was required to give sureties to answer to the demandant for the issues and profits of the demanded premises, from the time of the receipt . till the final judgment, if that judgment should be for the demandant (n). I am not aware that sureties have ever been required in our courts; and as no damages are ever recovered here in real actions, under any other circumstances, it is not probable that they would be awarded against the party so received.

In the above counterplea I have averred that the party had nothing in the reversion on the day of the purchase of the writ, in conformity with the ancient precedents, al

(n) 2 Inst. 346. Rast. 581.

though it seems unnecessary; for if the reversion existed before, and comes to the party after the commencement of the action, he is entitled to be received (o). So on the other hand, if he had the reversion at the commencement of the action, yet if he has it not at the time of his appearance, he cannot be received. This shows that the rejoinders in Rastel, to wit, "that he had the reversion on the day of the writ purchased," are incorrect; because if that issue were found against him, it would not follow that he ought not to be received (p). I have therefore added to the rejoinder the averment, that the reversion still doth belong to him; and I should think the rejoinder better, and the counterplea also, if the clauses enclosed in brackets were struck out.

SECTION IX.

Judgment.

The Judgment, when the demandant recovers the demanded premises, is as follows:

CHAP.

IV.

It is therefore considered by the Court here that the said D. do 39. Judgment for demandrecover his seisin against the said T. of the tenements aforesaid ant. with the appurtenances, together with his costs of this suit taxed

at

The judgment for the tenant is the same as in personal

actions.

ant.

that the said D. take nothing by his writ aforesaid, and that 40. the said T. go thereof without day; and that the said T. recover against the said D. his costs of suit taxed at

The statute 1784, c. 28, gives the form of a writ of "Facias habere Possessionem," in which it is recited that A. B. "has recovered judgment for his title and possession

(0) Bro. Receipt, 57. Counterplea de Receipt, 9. 19 H. 6. 21. 21 H. 6. 13. and other cases collected in Viner, Receipt. (M.) [P.] See Herne's Plead. 379. [475.]

(p) Bro. Count. de Receipt, 9.

CHAP.

IV.

of and in a certain messuage," &c.; and there is no other form of execution prescribed in the statute for the case of the recovery of land. This form had probably been in use long before the date of the statute, and was adopted when the process in real actions was very little regarded in our practice, and when all such actions were called by the general name of actions of Ejectment. If the execution in all real actions must always be issued in that form, it would probably be thought proper to make the entry of the judgment correspond with the above recital of it in the execution. But as the statute does not expressly prohibit any other form of execution, there seems to be no objection to awarding the judgment and execution in writs of entry in the forms prescribed by the common law.

The judgment on pleas in abatement is substantially the same as in personal actions, unless when it is a final judg ment for the demandant; in which case it is the same as in the above form, pl. 39.

CHAPTER V.

SECTION I.

Writ of Entry on Abatement.

THE Writ of entry on Abatement, when the demandant is the immediate, or next, heir of the person last seised, and when the present tenant is the abator, may be in the form following:

CHAP.

V.

abatement af

ter the death

Summon T. to answer to D. in a plea of land, wherein the said 1. Entry on D. demands against the said T. such a piece of land, &c. which he claims as his right and inheritance, and into which the said T. of the father. unjustly abated after the death of one F. the father of the said D. whose heir he is, within thirty years now last past, as it is said. And whereupon the said D. says that within thirty years now last past the said F. was seised of the tenements aforesaid with the appurtenances in his demesne as of fee and right, taking the profits, &c. and afterwards died so seised thereof; and from the said F. the tenements aforesaid with the appurtenances descended to the said D. who now demands the same as the only child and heir of the said F. and into which the said T. unjustly abated as aforesaid (a).

The form of the count here proposed differs in some respects from the precedent in 2 H. Blacks. 444. It is said here, that the land descended from the ancestor to the heir, and not, that the right descended. When the ancestor is disseised, and dies before re-entry, he dies seised of a right only; and this right is all that can descend to his heir. Accordingly in a writ of entry on a disseisin to an ancestor, it is always alleged that the right descended. But when the ancestor dies seised of the land, the

(a) See Co. Ent. 597.