Ten Eyck and wife, demandants, against Waterbury, tenant

Ten Eyck and wife, demandants, against Waterbury, tenant. ALBANY, Feb. 1827. Til° puts in issue hisinlMtogtlthé statute ofiimiwhere ’a plea, seisin of the ^^years*it ^Spec"¡ai murrer,. as - e . special plea, in a writ right, is trijmy°hut the mise, by size Ilona s^cteT’matter is_ includwith the mise in the same rica, it is bad as requiring different modes bad part, is bad - under the *^ial df defence may evidence^ e™ cePt collateral The demandants brought a writ of - right; and counted" on the seism- of the wife’s; ancestor, Matthew Yischer, and her own. seisin, within.- 25. years, &o. The tenant, in plea, put himself upon.the grand assize, prayed recognition, &c,, whether-the tenant, or the demandants had" the greater right to hold; and then added a práyer that it might be inquired of by the. grand assize, .whether Matthew Yischer was seised, &c.-, within 25.years,Ac.', as the demandants had alleged. Special demurrer, assigning ■ for cause, that the prayer to inquire .of .theiseisin of • Yischer was included in the mise. Joinder in demurrer. •- - J. V. Henry, in support "of .the demurrer". The statut, . , of limitations was included m the mise; and amounts'to more. ■ .Booth on Real Act. 92, 5 ; 3 Wils. 419, 420. The mise puts the whole -title' in issue. -The case is then within the common principle,- that a special plea amounting *to the general issue is bad. Com. Dig. Pleader, E. 14. The plea-being bad for a. part, is bad in toto. Id. E. 36. - - It is bad for duplicity.. Id. E. 2. P. & Parker, contra. -.The demandants counting on the seism of, the ancestor wibhin 25 years, the ordinary mise would not be sufficient to put the whole -matter in issue. - -It meets no more than the seism of the demandant. Duplicity-in is not assigned as one of the causes of demurrer. Beside the plea of the statute of limitations is to meet the seisin of the ancestor. It was necessary,-to reach the whole case, The precedents will be found to sanction this plea. 3 Chit, Pl. 654; 10 Wentw. 220: Booth on Real Act. 102. A. Van Vechten, in reply, said the seisin of Vischer was put in as mere inducement to the demandant’s title. The simple mise would bring up every possible question. As to the precedents, they are all against this form of pleading. [MAJORITY — Curia, per Savage, Ch. J.] Curia, per Savage, Ch. J. The plea is bad. This mode of pleading arose from the tender of the demimark, which was a sum of 6s. 8c?., paid for the privilege of pleading that the demandant or his ancestor was not seised in the time of the king mentioned in the writ; and the demandant, though seised in another king’s reign, might perhaps fail through this error, the same as if never seised at all. The time of seisin in another reign did not come in question upon the mise, which tried the question of mere right. The tenant, therefore, to entitle himself to this inquiry, as to the particular king’s reign, must pay the demimark. Booth, 68. A question is discussed in Booth, 98, as to the time when this should be done; whether at the time of pleading, or the time of trial. The mise puts the seisin in issue, as the common plea of not guilty in ejectment puts in issue the title; and, under the mise, any thing may be given in evidence, except collateral warranty. Booth, 95, 115; 3 Wils. 419, 20. That part of the pleading which gives cause for the demurrer *has no application under our laws; and if it means any thing as a special plea of the statute, then it is bad as amounting to the general issue. It is-bad also in another point of view. The mise is to be tried by 16 recognitors. (1 R. L. 51.) Special pleas may be pleaded in writs of right when clear; (Booth 115;) but "they are to be tried by a common jury; and hence, in England, it is best sometimes to plead specially, to save time and expense; for great delay and expense are common in summoning the knights to compose and prepare the grand assize. The plea, in this case, was probably taken from 3 Chit. Pl. 654; but it is only applicable when the demimark may be tendered. If intended as a special plea, it is bad; 1. as amounting to the mise only; and 2. to the mise and a special plea. As such, it is bad in this action, because the two pleas are incompatible. They require different modes of trial; the former by the grand assize, the latter by a common jury. A plea bad in part is bad in the whole. (Com. Dig. Pleader, E. 36.) The whole plea is therefore bad; though the mise, had it stood alone, would have been good. The demandants are entitled to judgment on the demurrer ; with leave to the tenant to amend on payment of costs. Judgment for the demandants.