Verdict concludes specially on one point the Court shall doubt of no more than the Jury doubts securs where it concludes it the General General conclusion depends upon all the Points of the Verdict by Payment of Money by Sir J. P. to one W. but yet in making up their Verdict they had given the Possession to the Plaintiff by Lease and laid the Entry upon him by W. without any Title under Sir J. P. but that was included and so not regarded Hen. 55. 262. But if the Jury conclude upon the General whether the Defendants Entry were lawful or not which is all one as if they had referr'd to the Court whether he be Guilty or not this depends upon all the Points of the Verdict indifferently that may prove him Guilty or Not guilty Hob. 262. So is Castle and Hobb's Case Cro. Jac. 22. The Verdict was on the passing by Letters Patents and the Jury found that if they were good Letters Patents then for the Defendant otherwise they found for the Plaintiff and they find no Title for the Plaintiff But it is intended there is a sufficient Title found for the Plaintiff unless by this Patent it be defeated and avoided so that if the Jury be satisfied that the Plaintiff hath any good Right by any other manner of Title the Court ought not to doubt thereof How and in what Cases Special Verdicts shall be taken by Intent or Presumption and what things shall be supplied I Devise all those my Lands in Shelford called Somerby to W. in Tail remainder over and it is not found per Verdict that those Lands in the Action are called Somersby But per Cur. for as much as the contrary is not found it shall be intended that he had not other Lands in Shalford than those which were called Somersby tho' that name be not at first given them for it was I Devise all my Lands in Shalford to his Wife for Life and the remainder in Tail prout ante Co. Eliz. 828. Peck and Channel It shall be intended that the Reversion continues in the Party as if a Special Verdict find that A. was possest for years of Land and that the Reversion in Fee was in B. Reversion shall be intended to continue and that A. Devise the Term to C. after the Death of M. whom he makes his Executor and dies and M. enter and during his Life C. after releaseth his possibility to B. and it is not found that the Reversion continued in B. at the time of the Release yet it shall be intended to continue in him in a Verdict it being found to be once in him by the same Verdict before p. 13 Car. 1. B. R. Johnson and Trumper A Life shall be intended to be in being tho' not found Where a Life shall be intended to be in being as was Fretzvil and Mollineux's Case If the Jury find the Title of the Plaintiff to be under one who was Lessee for Life and they find the Estate for Life but do not find the Tenant for Life is alive The Life shall be intended and supplied the conclusion and reference to the Court being upon other matter Special Vedict in Ejectment found that J. J. was deprived by the high Commissioners of a Benefice and it is found in this manner That such persons authorizati virtue Literar ' Patent ' Eliz. Reg. Jury find virtute Literar ' do not find they were under Seal and it is not found that the Letters Patents were under the great Seal yet this is good and shall be intended in a Verdict Tr. 13 Car. 1. B. R. Allen and Nash In Ejectment The Verdict was on a Proviso of Revocation of uses That it should be lawful for the Covenantor being in perfect health and memory under his Hand and Seal and by him delivered in the presence of three credible Witnesses c. It was agreed That tho' the Verdict do not find the Covenantor was in perfect health and memory yet that was well enough for it shall be presumed except the contrary were shewed What shall be presumed unless the contrary be shewed and so for the presence of credible and sufficient Persons Otherwise if it were in the presence of sufficient subsidy Men Hob. 312. Kibbet and Lee. If the Jury find that J. S. was seised in Fee and devised the Land to J. D. altho' they do not find the Land was held in Socage yet that is good for this shall be intended it being a Collateral thing and it being the most common Tenure If the Jury find that J. S. was seised in Fee Devise and made his Will in haec verba and that he afterwards died altho' they do not find he died seised yet it shall be intended he died seised and so good But If the Jury find the Words of the Will and yet do not find the will the Verdict is not good And if the Jury find a Bargain and Sale and a Fine Bargain and Sale and do not mention Inrolment or Proclamations it shall not be intended Hob. 262. In Ejectione Firme the Verdict finds that E. D. the Lessor and Conisor was seised in Tail of the Manor of B. at the time of the Recognizance and that this Manor was delivered in Extent but he doth not say that the Lands in the Declaration were parcel of the said Manor and so it s not found Extent that this Land was delivered in Extent and then the Defendant had no Title Per Cur. it s not material it shall be intended in a Special Verdict otherwise there is no Cause of a Special Verdict Cr. Car. 458. Cleve and Vere It was objected in Corbet and Stones's Case p. 1653. B. C. The Jury find that after a Fine levied and before the Ejectment the interest of M. C. F. B. and K. B. of the Lands in Question came to the Lessor of the Plaintiff That the Interest of the Lands came to the Lessor but shews not how but shews not how But per Cur. it is good enough for when the Jury finds the interest comes to the Lessor the Court intends all Circumstances that shall conduce to that fact for the Court doubts not when the Jury doubts not 4 Rep. 65. Fullwood's Case The Jury find that J. C. came before the Recorder of London Statute and Mayor of the Staple and acknowledged himself to T. R. in 200 l. Exception was taken that there was no finding of any Statute there for it was found that this was secundum formam Statuti and that it was by Writing But per Cur. its good enough for all Circumstances shall be intended Raym. 150. And there is another Rule in our Books persuant to this last In a Special Verdict all necessary circumstances shall be intended in a Special Verdict the Circumstances shall be intended or in a Special Verdict the Circumstances of every thing need not to be so strictly found as in pleading As in Ejectment the
THE LAW OF EJECTMENTS OR A TREATISE SHEWING The Nature of EJECTIONE FIRME the Difference between it and Trespass and how to be brought or removed where the Lands lie in Franchises In what Cases this Action lies or not Of the Old Way of Sealing Leases and of the New Practice Of Confessing Lease Entry and Ouster Of what things Ejectione Firme lies or not Of Declarations in this Action and what Special Pleadings are now in use Of Venues Issue Trial. As also Who are good Witnesses or not in the Trial on Ejectment and what shall be allowed good Evidence or not either as to Records or Matters in Fait Where Bills Answers and Depositions shall be read on a Trial or not Together with The Learning of Special Verdicts at large relating to Titles of Land and Estates in several Rules and of Judgments with their several Forms of Entries in Special Cases and of Habere facias possessionem how to be executed and in what Cases a new Habere fac ' possessionem shall be granted And lastly of Erroneous Judgments and Writs of Error and several other Matters all relating to Actions of Ejectments Very necessary for all Lawyers Attornies and other Persons especially at the Assises c. LONDON Printed for Iohn Deeve at Bernards-Inn Gate in Holbourn 1700. THE PREFACE TO THE READER UPon the first View of the Title of this Treatise I doubt not but many Persons will slight it being upon a Topick well known and understood as they imagine by even every Pretender to the Law There 's not the least Sollicitor or Attorney in any Nook of Cornwall or Corner of Cumberland but thinks he is privy to the whole Learning of Ejectments And yet if they would take the Pains to peruse the ensuing Sheets they doubtless may be of another Opinion and will find very useful and proper Matter relating to an Action which concerns the greatest Titles in the Kingdom and has made so great a Noise at the Barr and in the Circuits for Sixty Years last past Besides if there happen any material Mistake in this Action the Remedy is very chargeable I remember Mr. Levett's Case of the Inner-Temple the Argument whereof made by a very Ingenious Professor of the Law I have herein inserted The Record was an Issue of Trinity Term 1696. and the Demise is laid the 10th of April 1697. Habendum from the 25th day of March then last past whereas the Demise should have been laid the 10th of April 1696. And tho' Mr. LeveTt had a Verdict yet he could not have Judgment but was forced to a new Trial at Bar. And many more such Instances might be given I shall not dare to deliver my Opinion concerning the Change of Real Actions into Ejectione Firme but I know many Grave Lawyers have grumbled at the Inconveniencies of a Man's being too obnoxious to be trickt out of Possession However this we must all allow That since the said Alteration the Common Law hath lost a great Part of the Beauty and Nicety of its Pleading I have been large under two of the ensuing Titles I mean that of Evidence and the other of Special Verdicts Who shall be allowed as good Witnesses or not and what shall be lookt upon as sufficient Evidence both as to Matter of Record or Matter en Fait in this Action is of great Vse to be understood and the Cases that lay disperst in our Books for that purpose I have reduced to some Method And as for the right and exact drawing of Special Verdicts we all own it to be an undeniable Argument of a good Vnderstanding in the Law and of very great Consequence especially those which concern Title of Lands and Estates As for the Errata's of the Printer the Judicious Reader will find that they will not much interrupt the Sense and as for my own I humbly beg Pardon THE CONTENTS OF THE CHAPTERS CHAP. I. THE Nature of the Action of Ejectione Firme and the Reason of the change of Real Actions into Ejectments with the Lord Chancellor Ellesmore's Opinion thereon The Difference between Actions of Trespass and Ejectment in seven Diversities The Difference between Ejectione Firme and Quare ejecit infra terminum In what Court this Action to be brought or not Ejectments how to be brought in respect of the Place where the Lands lie Where to be tried Of Removal by Procedendo into inferiour Courts CHAP. II. Who shall have Ejectione Firme and in what Cases this Action lies or not in respect of Possession in respect of Entry congeable in respect of Exility of Estate By Lessee of Copyholder and how and whether before Admittance and the manner of declaring Of Ejectment by Executors by Infant by Lessee of a Simonist On Elegit On undue Extent and in case of holding over By Intruder by the King's Lessee by a Person Outlawed by Lessee of Bail on Extent and on Judgment against the Principal by Issue in Tail liable to a Statute who comes not in and pleads to the Sc ' fac ' on Entry of the Grantee of Rent with Proviso for Retainer till Satisfaction of Arrears by Cesty que Trust by Vendee of Commissioners of Bankrupts CHAP. III. Of Process in Ejectione Firme Of the Original What Mistakes in the Original are Error after a Verdict or not Of a vicious Original Of the want of an Original Of an Original taken out before the Cause of Action Of Amendments of Originals Where Amendment shall be by the Paper-Book Of the Retorn by Stat. 13 Car. 2. c. 11. Of Appearance Infant how to appear sue or defend The true Difference between Guardian and Prochein Amy. Of want of Pledges Of Bail Of Stat. 13 Car. 2. c. 2. Of Bail on Writ of Error VVhen common Bail to be filed Imparlance CHAP. IV. Against whom Ejectione Firme lies or not Of the casual Ejector Of the old way of Sealing Leases of Ejectment and in what Cases now to be used And of the new way of practise CHAP. V. Of the Rule of confessing Lease Entry and Ouster Whether such Rules may be made in inferiour Courts Rules of Court relating to confessing Lease Entry and Ouster Of Refusal to confess Lease Entry and Ouster and the Consequence Of how much the Defendant shall confess Lease Entry and Ouster In what Cases there must be an actual Entry and where it is supplied by confessing of Lease Entry and Ouster Rules concerning ones being made Defendant and of altering the Plaintiff of enlarging the Ejectment Lease CHAP. VI. Of what things an Ejectione Firme may be brought and of what not General Rules of Declarations in Ejectments Of Variance between the Issue-Roll and the Imparlance-Roll Of Entry and Ejectment supposed before the Commencement of the Lease Virtute cujus He entred how expounded Uncertainty in the Limitation of the Commencement and no Day of the Date shewed Et postea how expounded Mr. Levets of the Temple's Case Argued about amendment of a Declaration Declaration by Coheirs by Tenants
in Common by Baron and Feme By Joynt-tenants by a Corporation by Copyholder by Administrator CHAP. VII Where in the Declaration a Life must be averred and where it need not Of Delivery of Declarations at or after the Essoyn-day Declations when to be entred as of the same Term where the Copies need not to be paid for Declarations when amendable or not Of expressing the Vills where the Lands lie Of the Pernomen If it need to be of more Acres than the Plaintiff was ejected out of Of the Forms of the Declaration Vi Armis omitted Extr. tenet omitted The President of Declarations in B. C. in B. R. and in the Excheq The Indorsment of the Copy left with the Tenant and what the Tenant is to do thereupon The Rule of confessing Lease Entry and Ouster in C. B. and B. R. Affidavit in Ejectment to move for Judgment against the Casual Ejector CHAP. VIII What shall be a good Plea in Abatement in this Action Of Entry of the Plaintiff hanging the Writ Entry after Verdict and before the day in Bank After Imparlance no Pleading in Abatement and why Abatement because the Plaintiff shews not in which of the Vills the Land lies Ejectment against Baron and Feme Baron dies since the Nisi prius and before the day in Bank Of pleading to the Jurisdiction Conisance not allowable on Suggestion but it must be averred or pleaded How Prescription to the Cinque Ports to be made Ancient Demesne a good Plea in Ejectment and why It s a good Plea after Imparlance and why Of Plea of Ancient Demesne allowed the same Term and how Of Pleas puis darrein Continuance Entry puis darrein Continuance pleaded at the Assizes is resceivable and the Consequence of a Demurrer to this Plea Release of one of the Plaintiffs in a Writ of Error whom it shall bar Of Release puis darrein Continuance Plaintiff demurs to Plea of Entry puis darrein Continuance Quid Sequitur Accord and Satisfaction pleaded Aid prier and why the Defendant shall not have Aid pryer of the King aliter of a common Person A Writ not to proceed Rege inconsulto allowed Recovery and Execution in a former Action pleaded in Bar. Bar in one Ejectione Firme how a Bar in another CHAP. IX Of Challenge What is principal Challenge or not Of Elisors Of Venue VVhere the Parish and Vill shall be intended all one VVhere it shall not be de Corpore Comitatus VVhere the Venire fac ' is amendable Venire fac ' to the Coroners because the Sheriff was Cousen to one of the Defendants A Venire de Foresta Venire de Novo for Baron and Feme CHAP. X. XI Of Joyning Issue and Tryal In what Case no Verdict shall be Entred One Defendant Pleads Not guilty the other Demurs no Judgment upon the Demurrer till the Issue be tried Writ to Prohibit the Tryal Rege inconsulto Tryal in the Marches Consent to alter the Tryal New Tryal denied Of consent to a Tryal in a Foreign County Of Tryal in other County than where the Land lies Of Tryal by Mittimus in the County Palatine Who shall be good Witnesses in this Action or not Copy of a Deed. Deed cancelled Conditions Collateral Warrants found by a Jury What is good Evidence in Reference to a former Mortgage Where the probate of a Will is sufficient Evidence or not In Case of a Rectory what is good Evidence and what things the PaRson must prove Ancient Deeds Scirograph of a Fine Constant Enjoyment Evidence as to an Appropriation Deposition of Bankrupts Depositions in Chancery Transcript of a Record Inrolment of a Deed. Doomsday Book Of variance between the Declaration and the Evidence Of Demurrer to an Evidence ExEmplification of a Verdict Verdict Of a General Verdict Of Special Verdict Of Council subscribing the Points in Question Of finding Deeds in haec verba Eight Rules of Special Verdicts in Ejectment Of Estoppels found by the Jury and how they shall be binding What is a material variance between the Declaration and the Verdict Of Priority of Possession Where the Special conclusion of the Verdict shall aid the imperfections of it Where and in what Cases the Verdict makes the Declaration good Verdict Special taken according to intent Difference where the Verdict concludes Specially in one Point and where it concludes in General or between the Special conclusion of the Jury and their reference to the Court. Circumstances in a Special Verdict need not be precisely found Where the Judges are not bound by the Conclusion of the Jury Of certainty and uncertainty in Special Verdicts Of the finding Quoad residuum certainty or uncertainty in reference to Acres Parishes Vills and time of Verdicts being taken by Parcels How the Ejectment of a Manor to be brought Of a Verdict on other Lease or Date than is declared upon which shall be good or not Where a Verdict shall be good for part and void for the Residue The time of the Entry of the Plaintiffs Lessor where material Where the Jury ought to find an actual Ouster on him that had the right Prout lex postulat how to be understood Where and in what Cases Special Verdicts may be amended Where the Jury may conclude upon a Moiety or not Where a dying Seised or Possest must be found Where the commencement of an Estate Tail is to be found CHAP. XII Where the Defendant shall have Costs How the Plaintiff may aid himself by Release of Damages Executor not to pay Costs Lessor of the Plaintiff where to pay Costs Where Tenant in Possession liable to pay Costs or not Feme to pay Costs on the Death of her Husband Infant Lessor to pay Costs of the Writ of Enquiry the Entry If Writ of Error lies upon the Judgment before the Writ of Enquiry and why Writ of Enquiry how abated Costs for want of Entring Continuances Where the sole remedy for Costs in the first Tryal is to be had CHAP. XIII The Form of entring Judgments in this Action How the Entry is when part is found for the Plaintiff and part against him Qd. Def. sit quietus Quod Def. remaneat indefenss Against several Ejectors of form Of the Entry in case of the Plaintiff or Defendant One of the Plaintiffs died during a Curia advisare vult If the Death of one Defendant shall abate the Writ One Defendant dies after Issue joyned After Verdict and before Judgment the Plaintiff dies What Notice the Court takes of the Lessor of the Plaintiff Ejectment for the whole and a Title but for a Moiety how Judgment shall be In what Cases and for what Causes Judgment in Ejectments are Arrestable as Erreneous Judgment for the whole where it ought to be for a Moiety More Damages found than the Plaintiff Counts Judgment against Gardian and Infant Not severing intire Damages Against Baron and Feme quod capiantur Vi Armis omitted in the Declaration Plaintiff brings a Writ of Error and the Judgment is reversed
new Certificate to have the true Original certified Original taken out before the Cause of Action is Error Per Cur ' Take it for it is in Affirmance of a Judgment which ought to be favoured But in John's and Steyner's Case the Original bore Date 24 Junij 6 Car. and the Ejectment is supposed 31 Januarij Per Cur ' it's Error because the Original upon Diminution alledged was certified as an Original in this Action which is between the same Parties and of the same Land and of the same Term and being taken out before the Cause of Action it 's a vicious Original not aided by any Statute Stiles Rep. 352. Jennings and Downes Cro. Car. 272 281. Johns and Steyner It 's a Rule in the Register That in the Writ of Ejectione Firme there may not be Bona Catalla because that for Goods taken away a Man shall have an Exigend ' and in this Writ Distress infinite Plo. 228. b. So was Johnson and Davies's Case The Suit was by Original Writ which is of one Messuage Sixty Acres of Land Three hundred Acres of Pasture but per Curiam this shall not be intended the Original upon which the Plaintiff declared but that there was another Original which warranted the Declaration which is now imbesilled and this want is aided by the Statute of Jeofayls especially as this Case is because the Writ is Teste 18 Apr. Ret ' 15 Pasch c. This Declaration is in Trinity Term and here is no Continuance upon this Writ Cro. Car. 327. Johnson and Davis In Ejectione Firme the Paper-Book was right Where Amendment shall be by the Papre-Book or not scil Acram Terrae and the Bill upon the File was ill scilicet Clausum Terrae and the Bill was amended by the Paper-Book and the Difference is where there is a Paper-Book in the Office of the Clerk this being right all shall be amended by it but if there were not any Paper-Book and the Bill upon the File is ill there can be no Amendment and in this Case the Amendment was according to the Paper-Book which was in the Hands of the Plaintiff's Attorney Palmer 404 405. Todman and Ward It was an Exception in Haines and Strowder's Case because the Suit was by Original Writ and the Clause ostensurus was not in the Writ Palmer 413. Haines and Strowder Godb. 408. Case Crouch and Haines Case 488. The Original was Teste the same Day that the Ejectment was made Original Teste the same day of Ejectment and adjudged good per totam Curiam 2 Roll. Rep. 352 129. Beaumont and Coke As for the Amendment of Originals in Ejectione Firme Of Amendments of Originals in this Action there are many Cases in our Books I shall name one or two which may be as a Guide in others Ex divisione for ex dimissione was amended so Barnabiam for Barnabam and so what appears to be the Default of the Cursitor 1 Brownl 130. 1 Rolls Abr. 198. In Ejectione Firme If the paper-Paper-Book be perfect tho' the Bill upon the File be not perfect yet it 's amendable after Verdict if the Bill be not perfect but Spaces left for Quantity of Land and Meadow and after the paper-Paper-Book given to the Party is made perfect and the Plea-Roll and Nisi-prius Roll but the Bill upon the File was never perfected and after a Verdict is given for the Plaintiff this Imperfection of the Bill shall be amended because the Party is not deceived by this forasmuch as the Paper-Book which he had was perfect and it was the Neglect of the Clerk not to amend the Bill when the Party had given him Information of the Quantity 1 Rolls Abr. 207. Leeson and West Original in Ejectment was amended after Writ of Error brought as divisit for dimisit 2 Ventr 173. By the Stat. 13 Car. 2. c. 11. In all personal Actions and in Ejectione Firme for Lands c. depending by Original Writ after any Issue therein joyned and also after any Judgment therein had and obtained there shall not need to be Fifteen Days between the Teste-day and the Day of Retorn of any Writ of Ven ' fac ' Hab ' corpora jurat ' Distringas jurat ' Fieri facias or Capias ad Satisfaciend ' and the want of Fifteen Days between the Teste-day and the Day of Retorn of any such Writ shall not be assigned for Error If an Original in B. R. be ill Error upon it lies not but in Parliament Sid. p. 42. Action of Ejectment and also Battery in one Writ and it was moved in Arrest of Judgment because Battery was joyned in Ejectment the Damages were found severally and the Plaintiff released the Damages for the Battery and prayed Judgment for the Ejectment and had it 1 Brownl 235. Bide and Snelling Of Appearance If the Tenant in Possession do not appear in due time after the Declaration left with him Judgment against the casual Ejector for want of Appearance and enter into the Rule for confessing Lease-Entry and Ouster then upon Affidavit made of the Service thereof and Notice given him to appear upon Motion the Court will order Judgment to be entred up against the casual Ejector In Ejectment or any other personal Action if the Defendant do appear upon the first Retorn in Hillary or Trinity Term there can be no Imparlance without Consent or special Rule of Court In Actions real and mixt against an Infant he ought to appear by Guardian Infant how to appear and not by Attorney and Judgment in Ejectione Firme in Banco against the Infant Defendant upon a Verdict had against him was reversed for this Cause 1 Rolls Abr. 287. Lewis and Johns Ejectione Firme was brought against Thomas the Father and J. the Son the Father appeared by T. C. Attornat ' suum and the said J. per eundem T. C. proximum amicum suum who was admitted per Cur ' ad prosequend ' this is Error A Guardian and Prochein Amy are distinct Infant how to sue or defend and a Guardian or Prochein Amy may be admitted for the Plaintiff and a Prochein Amy is appointed by W. 1. c. 47. W. 2. c. 15. in case of Necessity where an Infant is to sue his Guardian or that the Guardian will not sue for him The Difference between Guardian and Prochein Amy. Want of and therefore he is admitted to sue per Guardian or Prochein Amy where he is to demand or gain but when he is to defend a Suit in Actions Real or Personal it always ought to be per Gardianum and the Guardian ought to be admitted per Cur ' Therefore the Defendant ought always to appear by Guardian and not by Prochein Amy and also to admit the Defendant ad prosequend ' is ill and preposterous Cro. Jac. 640. Maby and Shepard Pledges Error of a Judgment in C. B. in Ejectione Firme assigned in 1 Cro. Pledges not assigned for Error because Diminution was not
H. and it appeared at the Tryal that E. K. was Essoyned and the Court denied to amend it and there was no Essoyn and so no Adjournment and the Plaintiff was at large and Judgment pro Quer ' Note No Statute gives Amendment but in the Affirmance of Judgments and Verdicts and not in Defeasance of Judgments and Verdicts 1 Leon. p. 134. Woodel and Harel In Dyer 89. the Plea was quod non ejecit querentem de c. modo forma it was moved there that it is not any Plea and yet Dyer Vide 121. b. The Defendant in any case of Misdemeanour may say generally Non Culp ' or traverse the point of the Writ as ne forga pas non ejecit non rapuit non manutenuit In Ejectione Firme the Parties were at Issue In what Case no Verdict shall be entred and by the Order of the Court the Tryal was staid yet the Plaintiff privily obtained a Nisi prius and the Chief Justice being informed thereof awarded a Supersedeas unto the Justices of Assise before whom c. and yet the Inquest at the instance of the Plaintiff was taken and found for the Plaintiff and all this matter was shewed to the King's Bench and per Cur ' no Verdict shall be entred on the Record nor any Judgment on it 2 Leon. p. 167. Feild Leich and Cage Ejectione Firme against Drake and Five others Drake pleads Not guilty the others pleads the Plaintiff replie and so a Demur Per Cur ' seeing that one Issue in this Action was to be tried between the Plaintiff and Drake and altho' the Plaintiff offered to release his Damages on the Issue joyned One Defendant pleads Not guilty the other demurs no Judgment upon the Demurrer till the Issue be tried and to have Judgment against the Five Defendants who had demurred yet the Court was clear of Opinion That no Judgment should be given upon the said Demurrer till the said Issue was tried For this Action is in Ejectione Firme in which Case the Possession of the Land is to be recovered and it may be for any thing that appeareth that Drake who has pleaded the General Issue has Title to the Land But if this Action had been an Action of Trespass there in such Case ut supra upon Release of Damages and on the Issue joyned the Plaintiff shall have Judgment presently 2 Leon. p. 199. Holland and Drake In B. R. Writ to prohibit the Trial Rege inconsulto after Issue joyned in Ejectione Firme and the Jury ready to try it there comes a Writ to the Justices that they should not proceed Regina inconsulta in the nature of Aid prier and it was allowed Moor 421 583. Nevil and Barrington A Suit in the Spiritual Court pro jactitatione Maritagij stays not Tryal 1 Keb. 519. Ejectment in Brecknock-shire Stat. 27 H. 8. Marches it was tryed in Monmouth-shire since the Stat. 27 H. 8. it 's a Mis-tryal for Monmouth-shire was made an English County but in time of Memory by that Statute and so it ought to have been tried in Hereford shire Hard. 66. Morgan's Case Error of a Judgment in B. R. in Ireland in Ejectment after Verdict for Lands in the County of Clare It was excepted that the Verdict was given by a Jury retorned by the Sheriff of the Queens County Consent to alter the Tryal entred upon the Roll. Hob. p. 5. sed non alloc ' for the Consent of the Parties to this Tryal was entred upon the Roll which was not in Hobart but only in a proper Rule of Court and therefore the Judgment there was reversed as 1 Rolls Rep. 28. Crow and Edwards with this accords Cr. El. 664. Sir Thomas Jones 199. Devoren and Walcott A new Tryal was denied in Ejectment New Tryal denied and why tho' the Verdict was given contrary to the Direction of the Court in matter of Law because it was a Tryal and because it is not final Sir Thomas Jones 224. Earl of Thanet's Case Ejectment was brought for Lands in the County of Clare in Ireland Issue was joyned on Not guilty and then there is an Entry on the Roll Consent to a Tryal in a Foreign County Et super hoc pro indifferentitriatione exitus praedict ' inter partes praedict ' eaedem partes ex eorum unanimi Consensu Assensu Consensu eorum Conciliat ' Attornat ' c. petunt Breve Dom ' Regis Vic' Com' Cork dirigend ' de Veniâ—e fac ' duodecim de corpore Comitatus sui ad triandum exitum praedict Ideo praecept ' est c. then there is a Nisi prius granted to the County of Cork and the Cause was there tried and a Bill of Exception put in and on Debate in B. R. Judgment was given for the Defendant The Plaintiff brings a Writ of Error whether Consent can make this Tryal in a Foreign County good and per Cur ' the Tryal is well had Raym. 372. Vicount Clare and Lynch Hob. 5. 1 Rolls Rep. 166 363. Palmer 100. At the Assises in Northumberland 15 Car. Nonsuit at Nisi prius discharged 2. a Plaintiff in Ejectment was called and non-suited and this entred upon the Record before the Venire or Distringas c. was put in and this appeared by the Postea produced and so the Justices of Nisi prius had not power of Nonsuit for their Power is by the Hab. Corpus and therefore the Court discharged the Nonsuit and gave leave to the Party to proceed again Sid. 64. Tomson's Case CHAP. XI Of joyning Issue and Tryal Where Issue in Ejectment shall be tried in other County than where the Lands lie Trial by Mittimus in the County Palatine Who shall be good Witnesses or not in this Action What shall be good Evidence in this Action Copy of Deed. Deed cancelled Conditions collateral Warranties found by Jury What is good Evidence in reference to a former Mortgage Where Probate of Will is sufficient Evidence or not In case of Rectory what is good Evidence and what things the Parson must prove Ancient Deed. Scyrograph of a Fine and constant Ejoyment Evidence as to an Appropriation Deposition of Bankrupts Deposition in Chancery Answer in Chancery Transcript of a Record Inrolment of Deed. doomsday-Doomsday-book Variance between the Declaration and the Evidence Demurrer to an Evidence Exemplification of a Verdict Where Issue in Ejectment shall be tried IT ought to be in the County where the Land lies If Ejectione Firme be brought and laid in Com' D. for Lands lying in another County altho' this be by Assent of the Parties and the Defendant pleads Not guilty and Verdict and Judgment given for the Plaintiff yet this is Error for this is against the Law which cannot be altered by Assent of the Parties But upon View of the Record if it doth not appear to the Court that the Land lies in another County they will not reverse the Judgment for that Cause And
in 986. was lost and proved Per Cur ' being so old and the Records of the Rolls burnt since it is good Evidence tho' the Bill and Answer were not in it 2 Keb. 31. In Ejectment for Lands in Kent it was held upon Evidence by the Court and by Advice of other Judges whom one of the Barons was sent to consult That if one Witness be examined for the Defendant de bene esse to preserve his Testimony upon a Bill preferred Examination taken before Issue joyned no Evidence Hardr. 315. Brown's Case and before Answer and upon an Order of Court for his Examination made upon hearing of Council on both sides and if after Answer the Witness die before he be examined again he being sick all the while yet the Examination of such a Witness shall not be read in Evidence because it was taken before Issue joyned Divers Depositions in Chancery taken de bene esse Depositions de bene esse without Answer of the Defendant were produced in Evidence but the Court refused to permit the reading of such Depositions for Default of the Answer and it was agreed That the Court is not bound to such Evidence but the Course in such Case is by Order of Chancery to require the adverse Party to admit such Evidence but this doth not bind the Courts of the Common Law Sir Thomas Jones p. 164. Poricye's Case Two were made Parties to a Bill one had Title but the other does not claim Titile but in his Answer sets forth many things which made for the Title of the other Defendant And between other Parties in B. R. these Depositions were prayed to be admitted in Evidence to prove the same Title but it was not suffered because whatever the Defendant saith he saith it in Defence of himself and partially And Chamberlain Justice said The Answer of a Defendant is not good Evidence for any purpose but against himself 2 Rolls Rep. 311. Berisford and Phillips A Voluntary Affidavit made before a Master of the Chancery cannot be given in Evidence at a Tryal Stiles 446. Decree or Decretal-Order under the Exchequer-Seal Decree or Decretal-Order which recites the Proceedings and if it have Bill and Answer allowed to be read 1 Keb. 21. Trowel and Castle PEDIGREE In Ejectione Firme for the Barony of Cockermouth and the Lands c. the Lessor shewed an Inquisition in tempore R. 2. and finds an Intail to Henry Earl Piercy and derives his Title under his Third Son and offers in Evidence Dugdale's Baronage but it was not allowed In Ejectment the Earl of Thanet makes his Title by a Gift in Tail by King Edward II. to Robert de Clifford and the Heirs of his Body and to prove him to be Heir of the Body of the said Robert he produceth a Chart of his Pedegree which deriving him from the said Robert shews him to be his Heir And Sir William Dugdale and other Heralds being sworn they affirm that the Chart was deduced out of the Recodrs and and Ancient Books in the Heralds Office but the Court would not allow this for Evidence without shewing the Books and Record out of which they were deduced And after an Ancient Book was shewed by them which was allowed for Evidence Sir Thomas Jones 224. Earl of Thanet's Case Office found is no concluding Evidence Sir Tho. Jones 224. What Matter may or must be Pleaded and what Matter may or must be given in Evidence It is a Rule in Law Regula in all such Actions wherein one cannot Plead there the Matter to be Pleaded shall be given in Evidence and found per Verdict but where the Party may Plead the same is to be Pleaded by him Therefore in Ejectione Firme Trespass c. in Action on the Stat. 5 R. 2. cap. 7. and other personal Actions Collateral Warranty given in Evidence a Collateral Warranty cannot be Pleaded in Bar but he shall have the benefit of it by giving the same in Evidence to a Jury and the same is to be found by Verdict of the Jury so is Seymor's Case 10 Rep. 97. That Collateral Warranty may be given in Evidence on Not guilty Pleaded in Ejectione Firme because in that and other personal Actions that may not be Pleaded in Bar 1 Bulstr 166 167. Haywood and Smith 10 Rep. 97. Seymor's Case 1 Rep. Chudley's Case The Jury may find a Condition to Defeat a Freehold of Land Condition to defeat a Freehold found by Jury altho' it be not Pleaded but of things in Grant they must also find the Deed of the Condition 21 Ass 14. The Jury may find Estoppel which cannot be Pleaded Estopple found by Jury and Estoppels which bind the Interest of the Land as the taing a Lease of a Man 's own Land by Deed indented and the like being specially found by the Jury The Court ought to Judge according to the Special Matter 2 Rep. 4. Goddard's Case What Evidence the Jury shall have with them after Evidence given The Jury may not carry any other Evidence with them but what is delivered to them by the Court and shewn in Evidence Upon Evidence to a Jury to prove J. S. to be Heir to W. S. The Court will not accept the Pedigree drawn by an Herald at Arms for Evidence nor will suffer the Jury to have it with them it s but only Information for Direction p. 8. Jac. B. Plumton and Robinson If an Exemplification comes out of Chancery of Witnisses there examined upon Oath who are Dead the Jury shall have it with them not so if some are Living and some are Dead p. 10 Jac. B. Tomlinson and Croke If after Evidence given to the Jury at the Bar and they depart the Solliciter of the Plaintiff come to them and delivers to them a Church Book to take an Age which was given to them in Evidence before at the Bar and their shewed to them and after they found for the Plaintiff yet this shall not avoid the Verdict because it was no other than what was given to them in Evidence before Vicars and Farthing's Case What shall be good Evidence to make Title in several Special Case A Verdict for the Lessee is good Evidence for a Reversion in Ejectment Hardr. 472. In Ejectment of a Rectory As to a Rectory the taking of Tithes only no good Evidence of Ejement The Evidence was of the taking of Tithes only and not Entry into the Gleble and the Plaintiff was Non-suit so it was in Perry and VVheeler's Case 1 Keb. 368. for a Rectory consists of Glebe and Tithes Latch 62. Hems and Stroud A Parson in the Ejectment of a Rectory What things a Parson in the Ejectment of a Rectory must prove if he will make out his Title must prove Admission Institution aud Induction his reading and subscribing the Articles c. and his Declaration in the Church of his full and free assent and consent to all the things contained in the Common Prayer
whereof he is found Not guilty in as much as it is tenementorum praedictorum yet it shall be amended it being only the Default of the Clerk having the Postea before him when he entred the Judgment 1 Rolls Abr. 206. Sawyer and Hoskins Judgment quod recuperet and saith not terminum yet amended 1 Keb. 155. The Judgment was Amendment for Misprision of the Clerk quod recuperet the Possession of a Messuage Sixty Acres of Land Fifty Acres of Meadow and Fifteen Acres of Pasture whereas the Verdict was entred That he was found guilty of the Ejectment of a Messuage Ten Acres of Meadow and Thirteen Acres of Pasture and for the residue Not guilty so as there is not any Land in the Verdict and a lesser Quantity of Meadow and Pasture than is in the Judgment per Curiam it is amendable and is not like the Entry of a Capiatur for a misericerdia which is not amendable that being an Error in point of Law and cannot be imputed to the Default of the Clerk But here the Verdict is the Guide to the Judgment and when the Verdict is before the Clerk to enter up the Judgment it is but his Misprision especially the Entry of the Judgment in the paper-Paper-book being right according to the Verdict Cro. Jac. 632. Mason and Stephenson EXECUTION In Ejectment against two Two Defendants one confesseth the other pleads Not guilty one confesseth the other pleads Not guilty and at the Tryal the Plaintiff is Nonsuited he cannot take Execution against him that confesseth but if by Rule of Court one be made Defendant for part and confess the Plaintiff notwithstanding the Nonsuit may take Judgment against him that confesseth for his part but if each Defendant take upon him the whole Title the Plaintiff in any case cannot have Execution but one Defendant being Lessor of the House reserving a Chamber who never had any notice of the Action and therefore Judgment entred of the whole House is not void quoad the Chamber only but wholly And Hide would have had the Attorney who entred Judgment pay Costs but ordered Possession to be delivered to the Tenant on Agreement to relinquish the Costs 1 Keb. 786. Burgoigne and Thomas It was a Question much debated If a Scire fac ' quare Executionem habere non debeat upon a Judgment in Ejectione Firme may be brought by the Administrator of the Lessee the Plaintiff in Ejectment Scire fac ' upon Judgment in Ejectment may be brought by the Administrator of the Lessee or Lessor himself or by the Lessor himself against the Free Tenants and Per Cur ' the Lessee or his Administrator as well as the Lessor himself shall have this Writ in such a Case this was on demurrer to the Scire fac ' Yet the Lessee nor his Administrator shall have it but the Lessor himself Sid. 317. Cole and Skinner Note Recovery by the Husband in Ejectione of the Wife 's Term. Baron and Feme are ejected out of a Term in the Right of the Wife and the Husband recovers in Ejectione Firme brought by him in his own Name this is an alteration of the Term and vests it in him only 1 Inst 46. Note After Judgment Court of Equity not to relieve the Mortgagor It was adjudged in Throgmorton and Sir Moyle Finch's Case That after Judgment for the Mortgagee in Ejectment a Court of Equity cannot relieve the Mortgagor but he ought to have preferred his Bill before Judgment 3 Bulstr 118. The Case was He by whom the Money was sent to be paid for the Redemption of the Land was by the way robbed of the Money but the Money was paid presently after Note also No Judgment upon Nihil dicit but upon Motion in Court In Ejectione Firme if a Rule is given to the Defendant to answer and he doth not and upon this another Rule is given to answer peremptorily and he fails to do it no Judgment shall be entred against him on a Nihil dicit but upon Motion in Court It is said in Carter and Claypool's Case 1 Rolls Abr. 887. If a Man recover in Ejectione Firme against J. S. who after dies he must sue Execution against his Heir for by Intendment J. S. his Ancestor the Ejector was was a Disseisor Of Judgment against ones own Ejector Judgment against the casual Ejector Council prayed that he might not plead to the Declaration of Michaelmas Term on Lease of the Bishop of Worcester made this January Habend ' from the 20th of October last which is ill per Cur ' and Judgment stayed but this is a good Declaration of this Term by new Delivery Declaration is of that Term when the Tenant appears tho' of Course a Declaration is of that Term always when the Tenant appears which was but this Term yet Judgment stayed 3 Keb. 729. Hill 18. Car. 2. Finch and Pley The Action was of Easter Term and the Demise and Title of the Plaintiff is but two days before Trinity Term A Trick to gain possession and there was a Rule for Judgment against the casual Ejector per Cur ' this is but a Trick to gain Possession as Sir Richard Mincham's Case was who delivered Ejectments in his Wife's Life-time on Lease then when he had Title as of subsequent Term when she was dead and it is not fit to put the Tenant to a Writ of Error So the Rule was set aside and ordered a new Declaration 3 Keb. 343. Tr. 26 Car. 2. Stedman's Case Judgment against ones own Ejector cannot be entred When Judgment against ones own Ejector to be entred till the Postea retorned and indorsed that the Nonsuit was for want of confessing Lease Entry and Ouster which the Secondaries agreed for a Rule 1 Keb. 246. Sir Hugh Middleton's Case Council prayed Judgment against his own Ejector in an Action for Lands in the County Palatine of Chester Judgment against ones own Ejector for Lands in Com' Chester which the Court granted because when the Defendant hath pleaded to Issue they may try it by Mittimus in the County Palatine 2 Keb. 135. Reddish against Smith CHAP. XV. Habere facias Possessionem 1 Keb. 579. How this Writ is to be executed And when and in what Cases a new Habere facias Possessionem shall be granted or not How the Sheriff is to deliver Possession Habere facias Possessionem after the year without Scire fac ' and why THis Writ is made out by the Clerk of the Judgments By whom made out and when after Costs taxed and the Judgment signed In Ejectione Firme of 20 Acres of Land The Defendant on Not guilty pleaded is found Guilty for 10 Acres and Not guilty for the Residue Now the Plaintiff at his own peril Plaintiff at his own Peril to be put in Possession of the Acres sound upon his own shewing which they are shall be put in Possession Savil p. 28. And if a Man bring