specially admitted for the said B., and says, that in the record and In fact. proceeding aforesaid, and also in giving the judgment aforesaid, there is manifest error in this, to wit, that she the said B. is, and on the day of suing out the original writ of the said F., and also from the time of her nativity continually, hitherto, was a fool and an ideot, never enjoying lucid intervals, so that she neither is nor was sufficient to manage her said manors, messuages, lands, tenements, goods, and chattels; and it appears in the said record, that she the said B. appeared in the said plea, by H. K., then her attorney, and pleaded in bar of said dower, demanded by the said F. in the said plea, in the form above specified in the said record; whereas, by the law of the land, the said B. ought to have appeared and pleaded in the said plea by her friend, and not by the said H. K. her attorney; and therefore, inasmuch as the said B. appeared in the said plea and pleaded in bar of the said dower, in form aforesaid, by.her said attorney, and not by her friend, as by the law of the land she ought to have appeared and pleaded in bar of the said dower, the said B. says that, in the record and proceedings aforesaid, there is manifest error, and she prays that the judgment aforesaid, for the error aforesaid, may be revoked, annulled, and altogether held for nothing; and that she the said B. may be restored to all things, which she has lost by occasion of the judgment aforesaid.

but a lunatic.

REPLICATION. And the said F. says, that by reason of any thing Replication. by the said B. above for error assigned, the judgment aforesaid Not an ideot, ought not to be reversed, or annulled, because she says, that the said B., at &c., in the said record abovementioned, from the time of her nativity, was and continued of sound and whole mind and understanding, until the 23d day May &c., (a day after the commencement of the action,) on which day the said B., at &c. aforesaid, merely by the visitation of God, became of unsound mind, and has always continued so, from thence hitherto; without this, that the said B., from the time of her nativity, was a fool and an ideot, as the said B. has above alleged; and this she is ready to verify: Wherefore she prays judgment, and that the judgment aforesaid may be affirmed, and stand and remain in full force, rigor, and effect.

ISSUE. And the said B. by the said A. B., her said friend, as Issue. before says, that she the said B., from the time of her nativity hitherto, was a fool and an ideot, as the said B. has, in the assignment of the said errors, alleged; and this she prays may be inquired of by the country. 2 Saund. 332, 333.

any

NOTE. It is held, that, if an ideot sue, he must appear in person, and one who prays to be admitted as his friend, may sue for him; so, if an action be against him, he must appear in person, and any one who can make a better defence, shall be admitted to defend him; but a lunatic, or one who becomes non compos mentis, must appear by guardian, if he be within age, and by attorney, if he be of full age. 4 Rep. 124 b. Beverly's Case; 2 Saund. 333, note 4.

ADDITIONAL NOTE.

In Mitchell et alt. v. Kingman, 5 Pick. 431, it is held, that a person non compos mentis, has no right to appear and plead by attorney. If, at the trial, he appears to be still non compos, the plea by attorney may be treated as a nullity; and a guardian will be appointed, who will be entitled to plead de

novo.

IN FACT.

defendant.

ASSIGNMENT. Afterwards, to wit, on &c., comes the said D., Assignment of and says, that in the record and proceedings aforesaid, and also in infancy in the giving the judgment aforesaid, there is manifest error in this, to wit, that he the said D. D. appeared in the suit aforesaid, by E. F. his attorney; nevertheless the said D. D., at the time of his said арpearance, and also at the time of giving the judgmeut aforesaid, was under the age of twenty-one years, to wit, of the age of &c., and no more, to wit, at &c.; in which case the said D. ought to have been admitted to appear in the court aforesaid, to defend the suit aforesaid, by his guardian, and not by his attorney; therefore in that there is manifest error; and this he the said . is ready to verify: Wherefore he prays that the judgment aforesaid, for the error aforesaid, may be revoked, annulled, and altogether held for nothing; and that he may be restored to all things, which he hath lost by occasion of the judgment aforesaid, &c.

Replication.
Of full age.

Assignment of coverture in the defendant,

bringing the action.

REPLICATION. And hereupon the said A. freely here in Court comes and says, that by reason of any thing above for error assigned, the judgment aforesaid ought not to be revoked, annulled, or held for nothing, because he says, that the said D. at the time of his said appearance, to wit, in the term of &c., and also at the time of giving the judgment aforesaid, was of the full age of twenty-one years, to wit, at &c. aforesaid; and of this he the said A. puts himself upon the country, &c. Tidd's Prac. Forms, 485.

ASSIGNMENT. Afterwards, to wit, on &c., come D., and E. his wife, which said E. was and is impleaded in this suit by the name of at the time of E. F, in their proper persons, and say, that in the record and proceedings aforesaid, and also in giving the judgment aforesaid, there is manifest error in this, to wit, that before the day of exhibiting the bill (or suing out the original writ) of the said A. against the said E. by the name of E. F., and before the giving of the judgment aforesaid, to wit, on &c., at &c., aforesaid, the said E. intermarried with and took to husband the said D., and that she the said E. at the time of exhibiting the bill (or suing out the original writ) aforesaid, and also at the time of giving the judgment aforesaid, was and yet is covert of the said D., then and yet her husband, to wit, at &c. aforesaid; therefore in that there is manifest error; and this they the said D., and E. his wife, are ready to verify: Wherefore they pray that the judgment aforesaid, for the error aforesaid may be revoked, annulled, and altogether held for nothing, and that they may be restored to all things, which they have lost by occasion of the judgment aforesaid, &c.

Replication thereto.

Assignment of

REPLICATION. And hereupon the said A. freely here in Court comes and says, that by reason of any thing above for error assigned, the judgment aforesaid ought not to be revoked, annulled, or held for nothing, because he says, that the said E. at the time of exhibiting the bill (or suing out the original writ) aforesaid, was not nor is covert of the said D., in manner and form as the said D. and E. have above alleged; and of this he the said A. puts himself upon the country, &c. Tidd's Prac. Forms, 486, 487.

ASSIGNMENT. Afterwards, to wit, on &c., comes the said D. the death of the and says, that in the record and proceedings aforesaid, and also in trial, and award of scire facias to his executor.

plaintiff before

giving the judgment aforesaid, there is manifest error in this, to wit, IN FACT. that by the record aforesaid it appears, that the judgment aforesaid, in form aforesaid given, was given for the said A. against the said D. in the plea aforesaid; when in truth and in fact, the said A., in the plea aforesaid named, before the trial of the issue, joined in the record aforesaid, between the parties aforesaid, and before the giving of the judgment aforesaid, to wit, on &c., at &c., died; therefore, in that there is manifest error; and this he the said D. is ready to verify: Wherefore he prays that the judgment aforesaid, for the error aforesaid, may be revoked, annulled, and altogether held for nothing, and that he may be restored to all things which he hath lost by occasion of the said judgment, &c.; and the said D. also prays, the writ of &c., to give notice to &c., and &c., executors of the last will and testament of the said A., that they be before our said Court at &c., on &c., to hear the record and proceedings aforesaid, and the matter above assigned for error, and it is granted to him, &c. Tidd's Prac. Forms, 487.

and

one of the de

ASSIGNMENT. Afterwards, to wit, on &c., comes the said D., Assignment of says, that in the record and proceedings aforesaid, and also in the death of giving the judgment aforesaid, there is manifest error in this, to wit, fendants in the that by the record aforesaid, it appears, that the judgment aforesaid, action. in form aforesaid given, was given for the said A., as well against the said E. as against the said D.; when in truth and in fact, the said E., in the plea aforesaid named, before the trial of the issue joined in the record aforesaid, between the parties aforesaid, and before the giving of the judgment aforesaid, to wit, on &c., at &c., died; therefore, in that there is manifest error; and this he the said D. is ready to verify: Wherefore he prays, that the judgment aforesaid, for the error aforesaid, may be revoked, annulled, and altogether held for nothing, and that he may be restored to all things, which he hath lost by occasion of the judgment aforesaid, &c.

REPLICATION. And the said A. comes and says, that notwith- Replication. standing any thing above for error assigned, the judgment aforesaid he said dft. is yet alive; ought not to be revoked, annulled, or held for nothing, because he with traverse says, that the said E., in the plea aforesaid named, is yet living, and of his death. in full life, to wit, at &c.; without this, that he said E., before the trial of the issue aforesaid, joined in the said record between the parties aforesaid, died, in manner and form as the said D. hath above alleged; and this he the said A. is ready to verify: Wherefore he prays that the judgment aforesaid may be in all things affirmed, &c.

the traverse.

REJOINDER. And the said D., as before, says, that the said E., Rejoinder on before the trial of the issue aforesaid, joined in the said record between the parties aforesaid, died, in manner and form as he the said D. hath above alleged; and this he the said D. prays may be inquired of by the country, &c. Tidd's Prac. Forms, 488, 489.

NOTE. When the issue is upon the life or death of a party, the person who asserts the death must make proof of it; for the presumption is, that the party is alive. Wilson v. Hodges, 2 East, 312.

RELEASE.

of errors.

3. Release.

PLEA. And the said A. B. comes and says, that the said C. D. Plea. A release ought not further to prosecute or maintain his writ of error aforesaid againt him the said A. B., because he says, that after the judgment aforesaid, in form aforesaid recovered, and before the day of suing out the said writ of error, to wit, on &c., at &c., he the said C. D., by the name of &c., by his certain writing of release, sealed with the seal of him the said C. D., and to the Court of &c., now here shown, the date whereof is the same day and year aforesaid, did remise, release, and forever quit-claim to the said A. B., by the name of &c., his heirs, executors, and administrators, all and all manner of error and errors, writ and writs of error, and all benefits and advantages of the same, and all misprisions of error and errors, defects and imperfections whatsoever had, made, committed, omitted, done, or suffered in, about, touching, or concerning the judg ment aforesaid, obtained against him the said C. D. by the said A. B., in the said &c. term, then last past in the said Court of &c., for &c. dollars of debt, besides costs of suits, or in, about, touching, or concerning any warrant, process, original, declaration, plea, entry, or other proceeding whatsoever, of, or in any manner concerning the same judgment, as by the said writing of release more fully appears; and this he the said A. B. is ready to verify: Wherefore he prays judgment, if the said C. D. ought further to prosecute or maintain his writ of error aforesaid against him the said A. B., &c.

Replication. Non est factum.

REPLICATION. And the said C. D. says, that he, notwithstanding any thing by the said A. B. in his said plea above alleged, ought not to be barred from further proscuting and maintaining his writ of error aforesaid, against the said A. B., on the judgment aforesaid, because he says, that the said writing of release by him the said A. B. in manner and form aforesaid above pleaded in bar of the errors aforesaid, by the said C. D. above assigned, is not the deed of him the said C. D.; and this he the said C. D. prays may be inquired of by the country, &c. Tidd's Prac. Forms, 500, 501.

REAL ACTIONS.

ON REAL ACTIONS.

1. Pleadings in a Writ of Entry.

1. THE general issue is nul disseisin. By this plea, the tenant admits himself to be tenant of the freehold, and is consequently estopped thereby to show, that he is only tenant at will. 4 Mass. R. 443. So, under this plea, non-tenure cannot be given in evidence. 14 Mass. R. 409. Under this issue, if the demandant shows his seisin within the time alleged in his count, i. e. thirty years, he must recover, unless the tenant can show, that his entry was just, or by judgment of law; these being all the points put in issue by this plea. The tenant cannot give in evidence, under this plea, a title under which he does not claim, unless it be to rebut the demandant's evidence of seisin. 6 Mass. R. 418.

Where the demandant makes out a title to part only of the land, which he claims, he shall have judgment for that part. 2 Pick. 387; 3 Pick. 52. So, if the demandant counts as if sole seised, when, in fact, she is co-heir with others, on nul disseisin pleaded, she shall recover according to her title, if it appears from her own showing, that she is merely a coparcener. But if she proves a seisin in fact, without showing that she has a mere joint title with others, she shall recover the whole as against one, who has no title at all. 2 Pick. 387.

With this plea, the tenant, by leave &c., may plead a release to him, being in possession, by the demandant, and this will be a sufficient bar. 7 Mass. R. 76. And a replication, that before the commencement of the action, the demandant had conveyed his right to a third person, and that the action is now brought in the demandant's name, for his benefit, is bad. Ibid. But the defendant cannot join with this plea, nul disseisin, a plea, that the demandant was never seised in manner and form, &c. Because it traverses an allegation in the count, which is put in issue by the first plea. 6 Mass. R. 6.

2. The tenant may also plead in bar a conveyance by the demandant, to a third person, under whom the tenant does not claim. For, if the demandant have no right, he cannot draw into question the tenant's seisin. 6 Mass. R. 418. But the demandant may reply, that nothing