Hill vs. Whiting
In this Case the Plaintiff has alledged that her Father died seized on the Thirtyeth of the Month. But the Jury have found that he died seised on the Twenty first of the Month.
1. Inst. 293. a.2
“Also where a Man will sue a Writ of Right, it behoveth that he counteth of the Seisin of himself or of his ancestors, and also that the Seisin was in the same Kings Time, as he pleadeth in his Plea. For this is an ancient Law used, as appeareth by the Report of a Plea in the Eire3
Fitz. N.N.B. page. 69.4
Writ de Droit. “In this Writ he ought to count of his own Possession, or of the Possession of his Ancestor; otherwise the Writ doth not lie, and he ought to alledge Esplees” &c.5
From these Authorities it seems, that the Demandant must count of a Seisin at some certain Time as upon a certain Day, or within some certain Time as within such a Kings Reign, or within some other certain Time, and must prove accordingly.
32. H. 8. and 21 Jac. 1. Limitation of Real Actions.6
Bac. Abr. Vol. 3. 501.7
Holbeck vs. Bennett, 2. Lev. 11. 2. Saund. 317.8
Blackwell vs. Eales, 5. Mod. 286.9
Rex vs. Bishop of Chester, Skin. 660.10
Lane vs. Alexander, Cr. Ja. 202.11
2. Comyns's Rep. 12. 13.13
3. Lev. 193. W[he]
Day is made Parcell of the Issue it is ill.14
Brooke Trav. pl. 40.15
2. Mod. 145. Brown vs. Johnson.16
Time is not traverseable. Plaintiff must alledge a Time for Forms sake but Defendant ought not to make Time Parcell of the Issue.
Court unanimous that the Day is not material, and therefore the Plaintiff recover.