The opinion
The opinion of the Court was drawn up by
Whitman C. J.
The distinctive-characteristics of a declaration in a writ of right, are, that the demand by the plaintiff, is of the land as his right and inheritance in fee, averring a seizin of himself, or of an ancestor under whom he claims, taking the esplees, &c. and that he ought to have possession of the same, but that the defendant deforceth him. In the English *17 mode of proceeding the words “ as by our writ of right,” &c. may with propriety be added, because the writ there is issued separately from the declaration, and in a form wholly inapplicable to our mode of proceeding. Booth on Real Actions, c. 3. In our mode of proceeding, in which the count is inserted in the writ, those words become senseless. The plaintiff’s writ in this case, as originally issued, was in due form, according to our practice, and was properly a writ of right. The amendment adding the above words was therefore immaterial.
The writ, a copy of which was introduced at the trial, wherein Plummer & als. were defendants, and Walker was plaintiff, was a writ of entry. Although the plaintiff therein alleges, that he was seized as of fee and right, yet he concludes by averring a disseizin done to himself by the defendants. The general issue, in such case, is nwl disseizin; whereas, in •a writ of right, there is no allegation of a disseizin, and of course no such general issue. The Court, therefore, were clearly right in refusing to admit such a plea in this case.
Thus in effect the plaintiff’s exceptions, laying aside what took place at the coming in of the verdict, are wholly disposed of. The case of Arnold v. Arnold, 17 Pick. 4 , affords a full elucidation of the doctrine relied upon by the plaintiff in this case, and contended against by the counsel for the defendant. It is said of a writ of right, that “ it is of so forcible a nature that it overcomes all obstacles, and clears all objections that may have arisen to obscure and cloud the title.” F. N. B. 6; 1 Inst. 158; and the case last cited, fully enforces this principle.
As to the disclaimer in the former action, attempted to be set up in bar of this, we find the parties were not the same in both; and from the argument of the defendant’s counsel it is evident that there was some difficulty, to say the least of it, in making out the identity of the land disclaimed, as being the same with that recovered; and the counsel for the plaintiff utterly denies its identity; and we are not furnished with the means of enabling us to determine any thing concerning it.
The amendments of the plaintiff’s declaration, including the one made at the coming in of the verdict, were clearly such as *18 are admissible by the Court in the exercise of a sound discretion, having regard to the furtherance of justice. To allow a plaintiff to diminish the extent of his claim is almost a matter of course. Dewey v. Brown, 2 Pick. 387 . And the doing it at the coming in of the verdict, to accommodate the demand of the plaintiff to the finding of the jury, may be admissible, when it shall appear to be in accordance with what may be just and reasonable; and in either case it furnishes no cause for excep- . tions.
Exceptions overruled.