Gentlemen of the jury, you observe the action you have to decide is an ejectment to recover part of Cheat. You have also observed there is no controversy as to location, but only as to title. It appears that the plaintiff and defendants both derive title from William Burton, the elder, so far, therefore, the title is a good one. Plaintiff deduces his title from William through Joseph and says he is heir in tail, and that the lands are entailed. There is no controversy as to the pedigree.
We must, therefore, turn our attention to the title set up by defendants from which the objections to the plaintiff’s arise. Defendants deduce their title from Joseph Burton’s will and a deed from William, his son. The first question is whether Joseph had a right to dispose of the lands or not, and we are to look back to old William Burton’s will to see whether there is an estate tail or a fee given. But this has been determined in the High Court of Errors and Appeals, and I was there informed that this question had been argued and determined three times in favor of the plaintiff. I have again listened to the arguments, and I think it was most certainly an estate tail and not a fee simple. I do not think *273it necessary to go into any reasoning on the subject, as defendants’ counsel are already acquainted with our reasons. If Joseph was tenant in tail, he could not pass a title by will or deed. It is said there was a power accompanying the estate tail which has been executed. Supposing the power to be good, we think it has not been well executed, for the testator intended the estate should remain in his family, and it is therefore void.
There is another point, upon which the defendants’ counsel have much relied, and the substance is, that the plaintiff ought to have brought a formedon, and that a deed of bargain and sale with warranty makes a discontinuance. We have attended to his argument; but have never heard that a formedon was brought in this country. An ejectment has always been brought and supplies the place of the formedon. It is also said, if there were assets, it would bar the recovery, but the evidence does not support that ground.
We were surprised when we heard the points that were made. We considered that the Court might have stopped the counsel. The privilege of being heard has been misunderstood. We had a right to have given our opinion at first, and an exception might have been taken to our opinion.
Verdict for plaintiff.
Motion in arrest of judgment, because the quality of the land is not mentioned in narratio, and there is too much uncertainty.
Peery. The quality and quantity should both be shown, 5 ComuDig. 677. The quality is necessary, 11 Co. 55, 25, Salk. 254. The nature and quality of the land should be certain, and those cases where a recovery has been allowed without showing the quality are upon the principle that “land,” as in this case, means “arable land,” 2 Bae.Abr. 169, Cowp. 350. If in this case it is so taken, the sheriff cannot deliver possession, for the greater part is woodland. The plot in this case make[s] the quality more certain, but thereby more difficulty arises; for the plaintiff ought not to recover what he has not sued for, the woodland, and the sheriff cannot give possession of it.
Bayard. There [is] now more liberality than formerly in the construction of the pleadings in ejectment. We see that the ancient distinction between messuage and tenement, and messuage or tenement, is done away, 1 Term 11. As it is conceded that land means arable land, the court will say after verdict the whole was arable land. The verdict will cure such objections, 1 Burr. 623. But it appears to me the declaration is well enough, for it names the close, and it has been determined long since that *274an ejectment “of two closes, called A and B containing three-acres,” was good, Cro.Jac. 435, and this case is held for good law, Cro.Car. 555, and established, 2 Cromp. 158, though if the narratio had named arable and pasture, and not specified how much of each, it might have been bad. If this case was to be settled at Westminster, they would refer to our understanding of the plots, as they do to Ireland for the meaning of terms, Str. 72, 1063,1084. And our plots describe the land with perfect certainty, and amount to the same thing as describing courses and distances in narratio, which is more certain than the quality itself.
Per Curiam. Johns, C. J.In Pekah’s Lessee v. Haughy, the narratio was drawn as this. Mr. Read, Levy, Pekah and myself thought, upon consultation, that the declaration was sufficiently certain, and we are still of this opinion.