
    Rochester Proprietors vers. Hammond.
    
      (From Plymouth.)
    
    
      Pleas in Abatement.
    
    THE Writ: Attach Nathan Hammond to answer the Proprietors of the common and undivided Land belonging to the Old Township of Rochester, in our County of Plymouth, in a Plea of Ejectment, wherein they demand against the said Nathan Hammond Possession of 120 Acres of Common Land that lieth in a Tract of Land containing 210 Acres in Rochester aforesaid: the whole Trad being bounded as follows, &c.; and say that on the 20th of December, 1739, in a Time of Peace, in the Reign of our late royal Grandfather, George the 2d, that they, among other Common Lands in the said Old Township of Rochester, were seized of laid 120 Acres of Land in their Demesne as of Fee, taking the Profits thereof to the Amount of £5 by the Year; and they ought to hold the same quietly; yet nevertheless the said Nathan Hammond has, within 20 Years last past, entered into the said Trad of Land, and now unjuctly holds the Plaintiffs out of said 120 Acres of Common as aforesaid; and, tho’ requested, refuses to deliver up the Possession thereof; to the Damage of the said Proprietors, &c.
    
      In Ejectment, a Description of the Land as “120 Acres of Common Land that lieth in a Tract containing 210 Acres,” and giving the Bounds of the whole Tract, is bad for Uncertainty.
    
      1765.
    Pleas: And the said Nathan Hammond comes and defends, &c., and faith the Plaintiffs’ Writ and Declaration aforesaid is bad and ought to abate, for that the Proprietors therein demand against the said Defendant Possession of 120 Acres of Land, but have not therein set forth the Bounds of said Land, nor described the same with sufficient Certainty, as by Law they ought to have done; 2d, for that the Plaintiffs have not therein set forth that the Defendant ever ejected them from said Land, as they ought to have done; 3rd, for that the Plaintiffs have not set forth that they were seised of Land at the Time when the Defendant in said Declaration is said to enter into the same, as they ought to have done; and these Pleas the Defendant is ready to verify, and thereof prays Judgment.
    
      R. T. Paine.
    
    And the said Nathan comes and faith that he holds 98 Acres of Land within the Bounds set forth in the Plaintiffs’ Declaration, by Virtue of a Deed of Bargain and Sale from his Father, N. Hammond, dated the 26th of March, 1734, who is since deceased, which Deed includeth a Covenant of Warranty against all Persons, and that his said Father held the same by Deed of Bargain and Sale, dated January 30, 1699, of John Hammond, who is since deceased, and which last Deed contains a Covenant of Warranty general; and the said Nathan also faith, that he holds twenty-two Acres of Land within the said Bounds, of Joseph Jenkins of Edgartown, in the County of Dukes County, by a Deed of Bargain and Sale from him, with a Covenant of Warranty general, dated March 3rd, 1763, and therefore prays Process of this Honourable Court may issue to vouch in the Heirs of the said John Hammond and the said Joseph, to defend his Title to said Land.
    
      R. T. Paine.
    
      Mr. Paine.
    
    Your Honours will observe that there is not the least Certainty in their Declaration. No Bounds are set to the Land demanded, but only the Bounds are given of a certain Trad from whence they are demanded. Now in England you mull set forth not only the Bounds, but also the particular Sort of Land, whether Pasture, Meadow Land or not. As in Savel’s Case, 11 Rep. 55. In this Case they have gone infinitely wide of the Mark. They have not told us whereabouts the Land they would eject us from lies; their Writ must of Consequence fail.
    
      Mr. Otis.
    
    Your Honours will presume in Favour of the Writ, if not express. The Lot from whence we demand this Land is clearly described; and we have set forth that we demand the foutherly Part of a 210-Acre Lot. The Sheriff, when he gives us Possession, may assign to us the southern-moil Part of the Lot, and Id Cerium est, quod, &c. But let the Sheriff give us Possession of the Whole, ’twill certainly be good for our Part recovered.
    
      Mr. Gridley.
    
    They have failed in a material Point. No legal Judgment can ever be grounded on this Process. No Execution, which is the Fruit of Judgment, can ever be levied, should they recover; for a Sheriff shall not make that certain which his Precept has not made so.
    
      Just. Russell.
    
    If the Sheriff should lay out wrong, would not Hammond remain possest of the Whole?
   Ch. Justice.

’Tis impossible for the Sheriff to lay out at all.

Unanimously abated. () 
      
      (1) See Atwood v. Atwood, 22 Pick. 287, Wilde, J. — “ When lands are demanded, the description of them mid be so certain that seisin may be delivered by the sheriff without reference to any description dehors the writ.”
     