Array was challenged Challenge of the Array to the Lessor because it was made at the Nomination of the Plaintiff and by Consent of the Parties two of the Attorneys of the Court did try the Array The Trial of the Array is good either by the Coroners or by two Attornies Godbolt 428. Williams and Lloyd 2 Rolls Rep. 363 and 131. In Ejectione Firme on Non culp ' pleaded it is not any Challenge to the Array that the Sheriff is Cousin to the Lessor of the Plaintiff for it does not appear that the Title of him in Reversion shall be in question for peradventure the Lease is not well made or no Ejectment committed and he in Reversion is not any Party to the Action So in the said Case it shall not be any Challenge altho' it appear to the Court by Averment that this Lease was made only in Trust and to try the Title of the Plaintiff for the Cause aforesaid Note But now in our seigned Ejectments it is otherwise because the Title of the Lessor is only in Question 2 Rolls Abr. p. 653. Sir Edward Kempston and Banister Cradock Id. ibid. Ejectment for Lands in Sussex tried at the Bar the Defendant challenged the Polls for Default of Hundredors but did not shew it for Cause till the Pannel was perused Per Hale Chief Baron Challenge for Default of Hundâ—edors on Trial at Bar. It is against the common Course to take a Challenge for want of Hundredors when the Trial is at the Bar upon a Jury returned at the Denomination of an Officer of the Court where there are but four and twenty left by the Parties themselves But if this Challenge be taken to the Polls it must be taken presently and the special Cause assigned viz. want of Freehold there Hardr. p. 228. Attorney-General and Pickering in Scaccario In Ejectione Firme upon a Lease made in G. of Land in T. In G. praedict ' the Venue shall not be from G. but from T. for it shall be intended that T. is a Vill of G. 2 Rolls Abr. 620. Beachamp and Sampson The Lease is made apud Curdworth of Lands lying in parochia de Curdworth praedict ' the Issue was de Vicineto de parochia de Curdworth The Venire is well awarded praedict is such an Averment as that of necessity it must be taken that Curdworth the Town and Curdworth the Parish are all one and if so be the Venire fac ' is of the one or of the other it must be good But if the Parish be a larger Continent than the Town aliter because it cannot be intended that more Towns were in the Parish unless it were shewed on the other side and we are to judge by the Record which proves the Town and the Parish to be all one So in 43 and 44 Eliz. in Ejectment the Lease whereupon the Trial was had was made apud Abingdon of Lands lying in Burgo de Abingdon praedict The Venire was de Vicineto de Burgo de Abingdon praedict This is a good Venire for praedict makes this by Intendment of Law to be all one 2 Bustr 209. Vale and Field 2 Rolls Rep. 21. mesme Case Cro. Jac. 340. mesme Case In an Ejectione Firme The Issue of Not guilty refers to the Ejectment where the Land lies if the Plaintiff declare of a Lease made apud Ickworth of Land in Berry in Suffolk and Not guilty pleaded the Venire fac ' shall be from Berry and not from Ickworth for the Issue of Not guilty refers to the Ejectment which was where the Land lies 2 Rolls Abr. 619. Pell and Spurgeon The Award upon the Plea-Roll was against both Defendants Ven ' fac ' amended they both plead Non culp ' The first Process viz the Habeas corpora was against both but the Venire fac ' against one of them only one of them being named in the Trial and Verdict for the Plaintiff against both Defendants Per Cur ' the Venire fac ' was amended after Error brought because vitium Clerici 3 Bulstr 311. Cranfeild and Turner Ejectione Firme of Lands in D. and the Visne was from the Parish of D. The Vill and the Parish intended all one and Verdict pro Quer ' It was objected as Error for the Venue ought to be from D. and not from the Parish of D. for it may be the Parish extended into several Vills But per Cur ' it is well awarded for prima facie they shall be intended all one if it does not appear to the contrary by pleading and it shall not be intended to extend into several Vills Jones Rep. 205. Gilbert and Parker Moor 797 798 837. The Venire fac ' was de Vicineto parochiae de Bredon which was ill for the Lease and Ejectment are alledged to be at Bredon which shall be intended to be a Vill and the Lands are intended to be at Workington which also shall be taken to be a Vill in the Parish of Bredon so that it appears to the Court that there is a Town called Bredon a Parish called Bredon and Workington a Vill in the Parish of Bredon and the Tythes are alledged to be in Workington and Willesdon which also shall be intended a Vill in parochia de Bredon so that the Venue ought not to have been out of the Parish of Bredon Workington and Willesdon And though Workington and Willesdon are named Hamlets in the Pernâ—men yet the Court ought to adjudge upon that which is alledged by the Plaintiff in his Count 11 Rep. 25. 6. Harpur's Case Ejectione Firme versus B. for ejecting him of certain Lands in Creeting St. Marys Creeting St. Olaves and in Creeting omnium Sanctorum and the Venire fac ' was de Vicineto de Creeting St. Mary Creeting St. Olives and Creeting Omnium omitting Sanctorum the Court blamed the Clerk for his Negligence Winch. 34. Good and Bawtry In the Venire fac ' one of the Pannel was named Thomas Barker of D. and in the Distringas Jurat ' he was left out and Thomas Carter de D. put in his place and at the Nisi prius Thomas Carter was sworn and with others tried the Issue Per Cur ' there is difference between a Mistake in the Name of Baptism and in the Sirname Difference in Law between a Sirname and a Name of Baptism for a Man can have but one Name of Baptism but may have two Sirnames as George for Gregory and being sworn at the Nisi prius it 's a void Verdict Cro. El. p. 57. Displyn and Spratt Ejectione Firme of a Lease apud Denham in Lands of the Parish de Denham praedict ' the Venire was de Vicineto de Denham it 's good enough The Parish and Village are intended to extend and to be all one Cro. El. 538. Bedel and Stanborough The Venire fac ' was ad faciend ' Jurat ' in placito transgressionis whereas it should have been in placito Transgressionis Ejectionis
Cost 1 Ventr 124. Adminstrator brought a Writ of Errorupon a Judgment given in Ejectment against the Intestate Per Cur ' he shall pay no Costs tho' the Judgment was affirmed and the Writ brought in Dilatione executionis 1 Ventr Writ of Inquiry It was assigned for Error That a Writ of Enquiry of Damages was awarded and no day given to any of the Parties to be there at the time of the Retorn The Entry for the Entry ought to be Ideo dies datus partibus praedictis or at least to the Plaintiff that so he might then pray his Judgment sed non allocat ' for the Defendant is not to have day and the Plaintiff is to attend at his Peril and so is the Course of the Common Pleas aliter in the King's Bench Cro. El. p. 144. Mathew and Hassel E. in Ejectione Firme had Judgment by Default against the Defendant whereupon a Writ of Enquiry issues out to enquire of the Damages and before the Retorn thereof the Defendant brought a Writ of Error the Question was Whether the Writ of Error were well brought in regard the Course of the Common Pleas is not to make up the Judgment until the Writ of Enquiry be retorned Rolls said A Writ of Error may be brought before the Writ of Enquiry be retorned in Ejectione Firme for in that Action the Judgment is compleat at the Common Law before it be retorned for the Judgment is but to gain Possession and so it is in a Writ of Dower But in an Action of Trespass where Damages are only to be recovered there the Judgment is not perfect till the Writ of Enquiry be retorned nor can be made up as in this Case it may But in regard that here is no compleat Judgment for there is no Capias which ought to be in all Actions Quare vi armis that the King may have his Fine which else he cannot have if the Party do not proceed in his Writ of Enquiry the Writ of Error is brought too soon and you may proceed to Execution in the Common Pleas for the compleat Record is not here Afterwards in another Case Rolls was of Opinion That it was a perfect Judgment and it is in your Power said he to the Defendant's Council whether you will have a Writ of Enquiry or not and if the Judgment be affirmed here upon the Writ of Error brought you may have a Writ of Enquiry in B. R. the Council therefore moved for a Certiorari Rolls take it but it will do you no good for the Judgment is well Stiles Rep. Glide and Dudenu's Case p. 122. Crook and Sanny Stiles 127. The Writ of Error lies upon the Judgment before the Retorn of the Writ of Enquiry and why This Point is setled now in both Courts In Ejectione Firme if the Plaintiff recover by Nihil dicit in which Judgment is given that the Plaintiff shall recover his Term and a Writ is awarded to enquire of Damages a Writ of Error lies upon this Judgment before the Retorn of the Writ of Enquiry of Damages and Judgment upon it for the Judgment is perfect as to the Recovery of the Term before by the first Judgment and the Plaintiff may presently have Execution for the Possession and peradventure he never will have Judgment for the Damages and so the Defendant shall be ousted of his Possession sans Remedy So it is if a Man recover in Ejectione Firme by Confession or non sum informatus or Demurrer a Writ of Error lies before the Damages taxed by Writ of Enquiry 1 Rolls p. 750 751. Newton and Terry Taverner and Fawcet Booth and Errington 5 Rep. Wymarth and House and Layton Latch p. 212. Council prayed Abatement of a Writ of Enquiry on 16 and 17 Car. Abatement by Death after Judgment or pendant Error but not after Affirmance 2. c. 8. by Affidavit of Cesty que vie's Death after the Judgment two days and by the Act from the Judgment affirmed in Error which was a Term after which the Court granted But it were better the mean Profits were recoverable in Ejectment by the same Verdict Wild held this should be given in Evidence on the Writ of Enquiry but being no Bar but in mitigation that is not sufficient and it was staid Warren and Orpwood M. 25 Car. 2. B. R. 3 Keb. p. 218. CHAP. XIV Of Judgment in Ejectment and Execution The Form of entring Judgment in this Action How the Entry is when part is for the Plaintiff and part against him How against several Ejectors The Form of the Entry in case of Death of the Plaintiff or Defendant After Verdict and before Judgment the Plaintiff dies Ejectment for the whole and no Title but to a Moiety For what Causes Judgments in Ejectment are arrestable or erroneous In what Cases Judgment shall be amended Of Judgment against ones own Ejector NO Judgment in Ejectment till Latitat filed Note and Bail 2 Keb. 743. The Form of entring Judgments in this Action In Cr. Quod recuperet possessionem termini El. 144. Matthew and Hassel's Case It was assigned for Error That the Judgment was Quod recuperet possessionem termini praedict ' where it should be Quod recuperet terminum for as in a Real Action he is to recover Seisin so in a Personal he is to recover Possession and the Writ is habere fac ' possessionem 1 Leon. p. 175. mesme Case All the Course of Entries How the Entry is when part is made pro Quer ' and part against when part is found for the Plaintiff and part against him is to enter only Quod Def. eat inde sine die quoad c. whereof he is acquitted It was Taylor and Woldboro's Case Cr. El. 768. Error of a Judgment in Ejectment was brought because the Defendant was found Not guilty quoad a third part and the Judgment is entred thereupon Quod Def. eat inde sine die quer ' in misericordia c. whereas it ought to have been Quod le Plaintiff nil capiat per Billam for that third part sed non allocatâ—r causa qua supra Cro. El. 768. and the Court would have affirmed the Judgment but because the Plaintiff had not appeared that Term they caused him to be nonsuited In 1 Rolls Rep. Quod Def. sit quietus 51. Error was assigned because the Judgment in Ejectione Firme in Wales was Quod Def. sit quietus such Judgment being only given in a Writ of Right and such Actions which are final but this Action is not final and the Judgment should be Quod Def. eat inde sine die Sir William Morris and Cadwallader's Case In Ejectione Firme Quod Def. remaneat indefens ' if upon Non sum informatus pleaded Judgment be given Quod Def. remaneat indefensus without saying versus querent ' yet its good 1 Rolls Abr. 772. Fiegot and Mallory Ejectment was against several Defendants Against several Ejectors c.
Ejectment by Executors Infant-Lessee of 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 by Judgment against the Principal by Issue in Tail liable to a Statute who comes not in and pleads to the Sc ' fac ' on Entry if the Grantee of Rent with Proviso for Retainer till Satisfaction of Arrears by Cesty que Trust by Vendee of Commissioners of Bankrupt THE next to be handled is In what Cases this Action lies and in what not whereby the Reader may be so well informed as not to hazard his Client's Cause and his own Reputation Note If the Heir bring an Ejectment and the Ancestor dies subsequent to the Action he shall not recover because every one shall recover only according to the Right which he hath at the time of the bringing his Action in Wedywood and Bayley's Case Raym. 463. It has been laid down for a constant Rule in our Books In respect of Possession That upon a Possession in Law a Man shall never maintain an Ejectione Firme but he ought to have actual Possession at the time of the Ouster as if Tenant for years makes a Lease at will and the Tenant at will is ejected the Question was in Stone and Grubham's Case 1 Rolls Rep. 3. if the Tenant for years for this Ejectment of his Lessee at will shall have an Ejectione Firme and it was resolved that he should not So if Lessee for years be the Remainder for years the Lessee for years is ousted his Term expires he in Remainder for years cannot have an Ejectione Firme because he had no actual Possession at the time of the Ejectment So if a Lease for years be made and before the Lessee enters a Stranger enters he shall not have this Action And upon this Reason of Law it is that by the new Rule of Practice the Defendant shall confess Entry and Ouster but it has been resolved That if Inquisition upon Elegit be found the Party before Entry hath the Possession and a Fine with Nonclaim shall bar his Right for before actual Entry he may have Ejectione Firme or Trespass and it is not like to an Interesse Termini In Smith and Rawlin's Case no Entry was proved to be by Dean and Chapter since 1631. yet in regard Rent had been actually paid there the Lessee may bring Ejectment without any Lease actually sealed on the ground 2 Keb. 127. Smith and Rawlins Possession of the Lessor of the Plaintiff must appear to be within Twenty years though the special Verdict be on another Point so Keb. 364. but 32 H. 8. c. 2. extends not to Common but the Reversion in the King will priviledge the Lessor of the Plaintiff being but a Lessee for ninety nine years against such want of Possession 3 Keb. 681. M. 28 Car. 2. B. R. Piggot and the Lord Salisbury Lessee for years shall only have this Action N. B. 120. F. He whose Entry is not congeable by Law In respect of Entry congeable cannot have Ejectione Firme as in case of a Formedon in Remainder and Discontinuance Lessor grants the Reversion to A. Lessee Attorns A. ousts him Lessee shall have Ejectione Firme N. B. 221. a. 1 H. 5. 3. pl. 3. The Action of Ejectment is maintainable if it appear by special Verdict that any former Lease made by the Lessor que c. be in force 1 Rep. 153. Rector of Chedington's Case How Copyholder or his Lessee shall bring an Ejectment Ejectment by Copyholder or his Lessee there have been uncertain Opinions in our Books but the Law therein stands thus Lessee of a Copyholder for one year shall maintain Ejectione Firme in as much as his Term is warranted by the Law by force of the general Custom of the Realm and it 's but Reason if he be ejected that he shall have an Ejectione Firme and it 's a speedy course for a Copyholder to have Possession of the Land against a Stranger but in the Guardian of the Monastery of Otlery's Case cited it was objected That if Ejectment be maintainable by Lessee of a Copyholder as it was adjudged in B. 4 Leon. p. 18. C. then if the Plaintiff recover he should have an Habere fac ' possessionem and then Copyholds should be ordered by the Common Law 4 Rep. 26. Cr. Eliz. 676 717. Erithe's Case Moor 709. Stoner and Gibson Leon. p. 118. The Lessor for years of a Copyhold which is made without Licence of the Lord By Lessee of a Copyholder without Licence of the Lord. may maintain an Ejectione Firme because he is Lessee against all but the Lord and the Lease is good between the Lessor and Lessee and against all Strangers but not against the Lord and so in Hardres's Rep. p. 330. The Lease of a Guardian or Copyholder will maintain the Declaration in Ejectment though void against the Lord and Infant And therefore Jackson and Neale's Case in Cro. El. 394. seems not to be Law which was The Licence to a Copyholder was to lett for twenty one years from Michaelmas last past he makes a Lease for twenty one years to begin at Christmas following to the Plaintiff who entred and being ousted by the Defendant brings an Ejectione Firme the Court was of Opinion That the Lease not being warranted by this Licence no Ejectione Firme lies upon it But in Petty and Evans's Case in Ejectione Firme brought by the Lessee of a Copyholder Declaration by Copyholder in Ejectment it is sufficient that a Count be general without mention of the Licence and if the Defendant plead Not guilty then the Defendant ought to shew the Licence in Evidence but if the Defendant plead specially as in those times it was usual then the Plaintiff ought to plead the Licence certainly in the Replication and the Time and Place when and where it was made 2 Brownl 40. Petty and Evans In Ewer and Astwick's Case it was doubted by the Court and so in several other Cases in former times Whether the Plaintiff in his Declaration ought to set forth the Custom of the Manor that the Copy-holder may Lease Copyholder in his Declaration need not set forth the Custom c. and then to shew that the Lease is warranted by the Custom But now it 's fully agreed That the Plaintiff ought not to shew that the Lease is warranted by the Custom but that shall come on the other side and so is the Practice not to declare on the Custom Rumney and Eve's Case 1 Leon. p. 100. It has likewise been a Question Ejectione Firme by Copyholder before Admittance or Presentment and where not without Admittance Whether one ought to be admitted before he can maintain this Action but it is resolved in Rumney and Eve's Case if customary Lands do descend to the younger Son by Custom and he enters and leaseth it to another who takes the Profits and after
or Will and so the Jury may find them the Deed or Will not being found in haec verba Stiles p. 34. Wright and Pindar A Deed made before the time of Memory A Deed made before time of Memory Ancient Deed. may be given in Evidence tho' it cannot be pleaded An ancient Deed is good Evidence without proving or Seal to it P. 17 Car. 2. B. R. Wright and Sherrard A Will Will. Probate under which a Title of Land is made must be shewed it self and the Probate is not sufficient Contra if it were on a Circumstance or as Inducement or that the Will remain in Chancery or other Court by Special Order of such Court 1 Keb. 117. Eden and Thalkill 2 Rolls 678. So is Brett's A Probate of a Will by Witnesses for Lands is not Evidence at Common Law And nothing can be given in Evidence against the Probate of a Will but Forgery of it or its being obtained by Surprize and so it 's conclusive Raym. 405. Error was brought of a Judgment in C. B. in Ireland in Ejectment The Question was upon a Bill of Exception for that the Justices of the Bench there would not direct the Jury Bill of Exceptions on the Probate of a Will that the Probate of a Will before the Archbishop of Canterbury the Testator dying in his Province and also the Bishop of Fernes were sufficient and conclusive Evidence but only affirmed it was good Evidence leaving it to the Jury To which the other Party shews in Evidence Letters of Administration of the Goods under Seal of the Primate of Ireland The Title was for a Lease for years in Ireland claimed by the Lessor of the Plaintiff under the said Administrator And Judgment was affirmed Per Curiam Where Bills Answers Depositions c. in Chancery shall be good Evidence in this Action or not In Ejectment the Defendant that made Title as a Purchasor under a Devisee Bill preferred by the Heir against the Devisee setting forth the Will and shewed only a Bill in Chancery preferred by the Heir under whom the Lessor of the Plaintiff claims against the Devisee whereby the Will was set forth and confessed in the Answer But per Curiam it is no Evidence tho' a Possession were proved accordingly in the Devisee and that this had been confessed by the Plaintiff in a former Tryal 2 Keb. 35. Evans and Herbert And yet in 1 Ventr p. 66. A Bill in Chancery was said to be given in Evidence against the Complainant On a Tryal in Ejectment it was shewed for Evidence That the Defendant P. was guilty of Simony for giving 100 l. per Annum to M. the Patron and to prove this they shewed a Bond conditioned to pay 100 l. per Annum generally And they say That an Action of Debt was brought against P. and P. had preferred his Bill in Chancery to be relieved against this Bond and by it disclosed that it was entred into for the Cause aforesaid But to that it was Answered That P. was presented by G. but it appeared that G. acted as a Servant to M. the Patron and it was opposed Where a Copy of a Bill shall be read as Evidence That this Bill is no Evidence because it only contains Matter suggested perhaps by the Council or Sollicitor without the Privity of the Party But per Curiam the Copy of the Bill shall be read as Evidence for it shall not be intended it was preferred without the Privity of the Party and it being disclosed by the Party himself otherwise they would not allow a Bill in Evidence if there be not Answer and other Proceedings upon it Siderf p. 220. Dr. Crawley's Case But at a Tryal the Plaintiff to prove his Bond offered a Bill by the Defendant in Chancery which Keeling Chief Justice held good Evidence as in the Parson of Amersham's Case Dr. Crawley where a Bill by P. a Simoniac to be relieved against his Bond was admitted against himself this being the Drift of the Bill and not any particular Allegation But the Court would not allow it Where an Answer in Chancery shall be good Evidence at a Tryal or not In a Tryal at Bar between Mills and Bernardiston an Answer of L. M. surviving Trustee under whom the Plaintiff claimed was offered for Evidence but being after a Conveyance by him the Court refused but had it been before it would be good against all claiming under him Answer ' good Evidence against the Defendant himself but not against other Parties But Twisden denied it because an Answer does not discover the whole Truth and therefore shall be only admitted against the Party himself that made it and not of one Defendant against another much less against a Stranger 2 Car. 2. B. R. And by Ley Chamberlain and Dodderidge a Defendant's Answer in an English Court is a good Evidence to be given to a Jury against the Defendant himself but it is no good Evidence against other Parties Godb. Case 418. 2 Rolls Rep. 311. Berisford and Phillips And if the Defendant's Answer be read to the Jury it is not binding to the Jury and it may be read to them by the Assent of the Parties Godb. 326. An Infant answered a Bill in Chancery by his Guardian Infant 's Answer by Guardian not to be read in Evidence against the Infant and it was a Question in Leigh and Ward 's Case in a Tryal at Bar in Ejectment where the Infant was Party whether that Answer could be read in Evidence against the Infant This Question was sent from the King's Bench by Justice Eyres to the Common Pleas to know their Opinion and per totam Curiam it could not be read for there is no Reason that what the Guardian swears in his Answer should affect the Infant 2 Ventr 1 William and Mary Where and in what Cases Depositions shall be read at a Tryal and where not Regularly the Depositions in Chancery or Exchequer Depositions no Evidence if the Party be alive of a Witness shall not be given in Evidence if he be alive But if Affidavit be made that he is dead they shall in a Cause between the same Parties Plaintiffs and Defendants Godb. p. 193. Sir Francis Fortescue Depositions taken in Chancery in perpetuam rei memoriam Depositions no Evidence without an Answer put in upon a Bill for that purpose exhibited cannot be given in Evidence in a Tryal at Law unless there be an Answer put in and produced Hardr. 336. Raymund Watts's Case Depositions taken before Commissioners of Bankrupts Depositions before Commissioners of Bankrupts no Evidence at a Tryal shall not be used as Evidence at a Tryal altho' the Witnesses be dead but Depositions taken before the Coroner with Proof that the Party made them if dead shall be good Evidence P. 18 Car. 2. Bick and Browning Exemplification of Depositions under the Great Seal Exemplificat ' 〈◊〉 Depositioâ—â— 988. whereby a Conveyance made
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-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-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
pray'd 91 594. in not certifying Pledges on Diminution alledged in a Writ of Error for that Cause per Cur ' Omission of Pledges or of one is Error tho' after a Verdict and the Defendant after in nullo est erratum pleaded may pray Diminution which cannot be granted but on Motion and then only to affirm the Judgment yet when the Record is come in it may be made use of to avoid the Judgment and because Diminution was not prayed the Court conceived it cannot be assigned for Error 1 Keb. 278 281. Hodges's Case Bail In Ejectment against Two one does not put in Bail it is Error 2 Rolls Abr. 46. Dennis Case In Ejectment on Non Culp pleaded by the Attorney for the Defendant Common Bail entred after the Attorney was dead Verdict was for the Plaintiff who had Judgment and Error was brought to reverse it because no Bail was put in for the Defendant yet the Attorney being once retained by Warrant to put in Bail and took his Fee and being but common Bail tho' the Attorney was dead yet the Bail was then entred as of the same Term it ought to have been done 3 Bulstr 181. Denham and Comber Trespass is within the Act of 21 Jac. which names Trespass generally Stat. 13 Car. c. 2. but Ejectment is not within that Act. Stat. 13 Car. 2. c. 2. orders Bail on Error in Trespass 1 Keb. 295. Power 's Case Note Error without Bail is a Supersedeas in Ejectment notwithstanding the new Act 13 Car. 2. c. 2. it being not within the general Word Trespass Id. p. 308. Lufton and Johnson Tr. When common Bail to be filed 14 Car. 2. B. R. ordered that Common Bail shall be filed for the Defendant before any Declaration by Bill in such Action shall be delivered to the Tenant in Possession of the Lands in such Declaration contained and that if the Attorney for the Plaintiff in B. R. shall fail thereof then no Judgment for the Plaintiff shall be entred against the casual Ejector nor shall the Tenant in Possession confess Lease-entry and Ouster at the Trial. Attorney was made Lessee in Ejectment Imparlance and he would not grant an Imparlance to the Defendant as the Course is because he is Attorney of this Court B. R. and so claims Priviledge that the Defendant may answer him this Term or else he will enter up Judgment against him for want of a Plea Quaere Stiles Rep. 367. CHAP. IV. Against whom Ejectione Firme lies or not and of the casual Ejector Of the old way of Sealing Leases of Ejectment by Corporations by Baron and Feme in what Cases now to be used EJectione Firme against one Simul cum had been ruled to be good and so used in the Common Pleas tho' heretofore it was adjudged to the contrary Stiles Rep. 15. It lies against Baron and Feme Lib. Intr. 253. 9. Rep. 77. e. Peytoe's Case Plo. 187. It lies against the Ejector or wrong Doer be who he will When the Course was to seal an Ejectment to try a Title of Land Who was accounted an Ejector formerly the Ejector in Law was any Person that comes upon any part of the Land c. in the Ejectment-Lease tho' it be by chance and with no intent to disturb the Lessee of Possession next after the Sealing and Delivery of the Ejectment-Lease and such an Ejector was a good Ejector against whom an Action of Ejectione Firme may be brought to try the Title of the Land in Question But he that was to try a Title of Land in Ejectment ought not to have made an Ejector of his own against whom he might bring his Action or to consent or agree with one to come upon the Land let in the Ejectment-Lease with an Intent to make him an Ector and to bring his Action against him for by that means the Tenant in Possession of the Land was after put out of Possession by a Writ of Habere fac ' possessionem without any Notice given to him or his Lessor of the Suit but now the Law is otherwise and altered by the new way of Practice The new course in Ejectments For now it is not usual to seal any Lease of Ejectment at all in this Action but the Plaintiff that intends to try the Title feigns a Lease of Ejectment in his Declaration and an Ejector and draws a Declaration against his own Ejector who sends or delivers a Copy thereof to the Tenant in Possession giving him Notice to appear and defend his Title or else the Ejector will confess or suffer Judgment by Default But if the Tenant or the Lessor will defend the Title then it is usual for them to move the Court that they may be made Ejector to defend the Title that is the Tenant appears and consents to a Rule with the Plaintiff's Attorney to make himself Defendant in the room of the casual Ejector and this the Court will grant if he will confess Lease Entry and Ouster and at the Trial stand meerly upon the Title but if they do not at the Trial confess Lease Entry and Ouster then the Judgment shall be entred against the casual viz. the Plaintiff's own Ejector Note The Court said in Addison's Case Mod. Rep. 252. That they take no Notice judicially that the Lessor of the Plaintiff is the Party interested therefore they punish the Plaintiff if he release the Damages but in point of Costs they take notice of him But before I proceed further The old way of Sealing Leases of Ejectment I hope it will not be tedious a little to shew how the Law and Practice was taken when Ejectment-Leases were sealed and Entries to be duly made and Warrants of Attorney made to deliver the Lease upon the Land by a Corporation Baron and Feme c. especially considering that in Inferiour Courts the old way of actual sealing Leases is continued Winch 50. 1 Brow nl 129. Godb. 72. Earl of Kent's Case And first The way to execute a Lease to try a Title the Land being in many Men's Hands was to enter into one of the Parcels and leave one in that place and then he must go into another and leave one there and so of the rest and then after he had made the last Entry there he sealeth and delivereth the Lease and then those Men that were left there must come out of the Land But when a Title was to be tryed by Ejectment and a Lease to be executed by a Letter of Attorney the Course was That the Lessor do seal the Lease only and deliver it as an Escrow and the Letter of Attorney and deliver the Letter of Attorney but not the Lease for the Attorney must deliver that upon the Land And upon Ejectment brought of Land in Two Villages as of an House and Forty Acres of Land in A. and B. and a special Entry in the Land adjoyning to the House viz. the putting in of an Horse which was drove out
Common Pleas the Issue is as much amendable by the Imparlance-Roll as it would have been by the Bill if the Action had been brought by Bill The Objection made to this Pulestone and Goodluck. is That tho' Tenants in Possession being not all duly served in the Country the Tenants agree to appear so as the Plaintiff would consent to try it at the Bar and that thereupon there was a new Declaration delivered which had this Mistake and seems to inferr that the former Declaration was waved and this was altogether a new Proceeding wherein the Court was misinformed for there was no new Declaration delivered and that which the Defendants produced was a Copy of the Issue only and proved nothing but that there was a Mistake which appears by the Roll and is admitted by the Plaintiff otherwise we need not this motion Now my Lord that the Defendants Appearance was to the Declaration delivered in the Country is plain for there was no other Declaration delivered nor was therein any other for them to appeal to besides it appears by the Rule wherein it is written Pulestone and Goodluck and under that the now Defendants shall be made Defendants in the room of Goodluck and shall confess Lease Entry and Ouster for the Lands in that Declaration mentioned and shall receive a Declaration and plead the General Issue and insist upon the Title only and that if the Plaintiff shall become Nonsuit for default of the Defendants confessing Lease Entry and Ouster then that Judgment shall be entred against the Defendant Goodluck c. Now my Lord I would know what Declaration the Defendants were to appear to it must be a Declaration against Goodluck and what Lease the Defendants were to confess it must be the Lease mentioned in the Declaration against Goodluck and what Judgment the Plaintiffs were to have if the Defendants did not confess Lease Entry and Ouster it must likewise be upon the Declaration against Goodluck. Now my Lord if the Defendants will shew a Declaration that was delivered them against Goodluck wherein there was this Mistake it would be hard upon us but if they cannot then the Declaration delivered against Goodluck is right and the demise they are obliged to confess is the demise in that Declaration and only mistaken by the Clerk's transcribing it Now My Lord if the Defendants have confessed a good and right demise and this hath been tried then it would be the greatest hardship in the World if the Court should not let the Plaintiff have the Benefit thereof and it is plain that the Demise the Defendants are by Rule to confess is the Demise in the Declaration against Goodluck. So that My Lord if there were no Statute to help it 〈◊〉 take it with Submission the Court having tried the Fact ought to make the Record according to the Fact they have tryed As to their consenting to appear for several of the Tenants that were not duly served on Condition the Plaintiff would try it at Bar My Lord that is an Argument against them and brings us within the Benefit of the Case betwixt Crawley and Parr where there was a Judgment in Ejectment by Confession and the Demise laid after the Judgment and amended after a Writ of Error brought because it was a Judgment by Warrant of Attorney for it should not be supposed that the Defendant gave a Warrant of Attorney to confess a void Judgment Now My Lord the Defendants consenting to appear shall never be intended to a void Declaration but to a good Declaration in order to a fair Trial. And My Lord we are the more intitled to the Benefit of it because we are Purchasors for we give a Consideration for it viz. agreed to try it at Bar and they themselves opened it so As to what was objected That when the Tenants have appeared to this Declaration in Ejectment and are made Defendants it is a new Action and that the Declaration against the Casual Ejector is rejected and that therefore this defect cannot be amended though right in the Declaration against the casual Ejector I give this Answer that the Declaration against this casual Ejector is not rejected but is by the common Rule in Ejectment made part of the Cause insomuch that if the Plaintiff be nonsuited he shall have his Judgment upon that Declaration and the Return of the Postea is Warrant for that Judgment so that by the common Rule in Ejectment they are so tied together that it is all but one Action and the now Defendants are to stand in the casual Ejector's place But My Lord the Words of the Statute are not so strict which are in any Proceedings precedenti Now My Lord the Declaration in Ejectment is a Proceeding and it is precedent and it is within the equitable meaning of the Statute which intends all Amendments that are by neglect of the Clerk if it appears that they are right in any of the Proceedings and for that end a Philiser's Note tho' no part of the Record hath been sufficient to amend by And My Lord the same may be said when the Defendant is arrested by a Lat. de Placito transgr ' and the Plaintiff declares in Debt or Case and mistakes the Christian Name Sirname whether shall it be amended by the Lat. and whether the Lat. shall be looked upon to be a Proceeding precedent to the Declaration because in another Action and so it would be if a Man be arrested de Placito transgr ' ac etiam Bill ' and the Plaintiff declares in Debt only this is likewise departing from the Writ but these are warranted by the Practice and Course of the Court these Processes being made use of only to force an Appearance and the Plaintiff may then declare in Case of Trespass or Debt as he sees good Now My Lord Declarations in Ejectment are the same thing because only made use of to force an Appearance and are by the common Rule in Ejectment become no more part of the same Action than a Lat. is But this My Lord we have a full Answer to for the Declaration against the now Defendant is entred on the Roll and is right But with Submission My Lord the Declaration is sufficient to warrant its own Amendment it being by Original viz. Que Johan ' Levett Maria eidem Rogero demiser ' ad terminum qui nondum praeteriit intraver ' ipsum à firma sua praedicta ejecer ' Now My Lord the Count may be amended by the Original which is that the Plaintiff's Lessors had before that time demised the Premisses to the Plaintiff for a Term not then past and if the Count be made of a Demise then in being it is all the Amendment we desire But My Lord here it may be objected When must that Demise bear date and commence Must the Court set a Date and Commencement to Plaintiff's Demise To which I answer That the Commencement is certain by the Declaration videlicet from the 25th
of March last and that must be the 25th day of March last before the Term the Issue is entred on which is from 96. and then the Date of the Demise must be betwixt Trinity Term 96. and the 25th of March before which points directly at the Mistake which is in Michaelmass If the 10th of Aril 1697. instead of 1696. and where the Court can by the Record take notice what was intended it is the same thing as if it had been once rightly named before and is within the meaning of that Statute which after the naming of many Mistakes hath these general words and all other Mistakes of the like nature which My Lord must be of no Signification if this be not the meaning of this Statute And My Lord as to this being the fault of the Clerk I need no Argument to prove it for the matter shews it self and the Declaration against the casual Ejector being right proves this the Fault of the Clerk in transcribing this wrong though the Declaration may properly be said to be the Act of the Client yet that shall be intended the Declaration against the casual Ejector that being the first Declaration and all that is necessary for the Client to instruct his Attorney in the rest only depending on the Forms and Practice of the Court wherein the Attorney needs no further Instructions from his Client Now My Lord I do admit that the general words in this Statute are restrained that is to say All other matters of the like nature not being against the right of the matter of Suit nor whereby the Issue or Trial are altered But My Lord this Restriction hath no relation to the particular defects that were mentioned before whereof ours is one but to the general words only and My Lord we are within the intent of these general words also For this Amendment is not against the Right of the matter of Suit for that was whether the Plaintiff's Lessor had a Title and that hath been tried and found for the Plaintiff nor is the Issue or Trial altered for had this been amended before Trial the Defendants must have pleaded the same Plea and the Trial would still have been the same The danger only was at the Trial on the Plaintiff's side whether this was not Cause of a Nonsuit and therefore it was his Business to have had it amended before Trial for fear of being nonsuited at Trial but having tried his Cause and the Right found with him he is much more entituled to the Benefit of this Amendment because it is to support a Verdict Nay My Lord a Verdict that was found according to the Right and Merits of the Cause which all Courts have been always very tender of Lastly My Lord I shall offer this to your Lordship That the matter we pray to amend is not matter of Substance yet ought to be amended to avoid Absurdity I must confess that if this had been a Demise to commence in futuro it would have admitted of a greater Argument but My Lord this is a Demise in being at the time of the Declaration and not yet expired and so much appears by the Record My Lord the Record is an Issue of Trinity Term 1696. and the Demise is laid the 10th of April 1697. Habend from the 25th of March then last past and the words in the Declaration are dimiser ' in the Writ and demisissent in the Count and that the Plaintiff entred by Vertue thereof and was possessed and the Defendant ejected him his Term being not ended c. all which the Defendant confesses This Demise must be before Trinity Term 96. or else the words demiser ' demisissent are to no purpose and it is impossible that before Trinity Term 1696. the Plaintiff's Lessors should have demised the 10th of April 1697. for that time was not come But it is possible that the 10th of April 1696. the Plaintiff's Lessors might make a Lease dated the 10th of April 1697. before the time of the date And if that be the Construction of it then this is a Deed from the time of the execution and the Term commences from the 25th day of March before Or else this being an impossible date must be altogether rejected and then Trinity Term and the 25th day of March being all the times that are certain in the Declaration the Confession is that betwixt the 25th day of March 1696. and Trinity Term following the Plaintiff's Lessors demised the date being no essential part and then this is a good Demise for five Years from the 25th of March 1696. Greater Mistakes than these have been amended after Verdict Lees and Sir Nathaniel Curson Mich last Bar. in Ejectment wherein the Plaintiff's Lessor being an Infant the Declaration was That the Infant demised by his Guardian which was no Demise and the Cause being tried at Staff last Summer Assises the Defendant's Council insisted on the Mistake and relied thereon and it being referred by consent to the Judge and a Verdict given for security the Judge referred the matter to the Court of Common Pleas who amended it though never right in any of the Proceedings The Bishop of Worcester's Case in this Court 15 Car. 1. Haslefoot and Cade after Verdict the day in Record is altered after Verdict where there were five Defendants and but three of them pleaded and after Verdict amended and the Verdict was recorded against two that no Issue was jonyed against in the Record of Ni. pr. Camberlain against the Hundred of Tundring upon the Statute of Hue and Cry 14 Car. 2. where it was ordered That the Record both of the Declaration and Issue should be amended by the Attornies and this was before Trial. Ours is a far stronger Case for this Amending if it had been before Trial would not have altered the Issue or any-wise influenced the Merits of the Cause Now My Lord we are intituled to the Favour of the Court in respect we moved this matter before Trial and were bid by the Court to move it afterwards and if this had been a fatal matter the Plaintiff ought to have been nonsuited which was then insisted on by the Defendants and denied and so the Plaintiff expose his Title paid the Charges of the Jury and other things which cost him above 100 l. and if he had been nonsuited was by Rule but to pay Country Costs and the Plaintiff's Lessors are Purchasors for a valuable Consideration under a Title of above Sixty years Possession And having now upon a fair Trial and a full Evidence obtained a Verdict we hope your Lordship will put them in a Capacity of reaping the Fruit of it The Judgment in Ejectment is double one as to his Damages upon which the Costs are attendant and the other as to the Term whereupon his Possession depends and the Plaintiff may take out two Executions one for his Costs and the other for his Possession Now if there be cause to stay the Possession there
is more cause to stay Judgment as to Damages and Costs because the Issue hath been fairly tried and the Defendants have confessed that the Plaintiff was in Possession and that the Defendants did eject him now if his Term was not commenced but his Possession tortious yet he is not to be turned out by a Stranger that hath no Title as the Defendants were the Jury having found against them and the Damages are for the entring upon our Possession and ejecting us But the Court said It could not be amended and Mr. Levet brought a new Trial and recovered Declarations when amendable or not In Ejectment where the Title is material Declaration amended after Plea without paying Costs the Plaintiff amended his Declaration after Plea but while all was in Paper in the date of his Action without Costs paying 1 Keb. 14. After Verdict and Judgment the Declaration cannot be amended After Verdict and Judgment no Amendment of a Declaration for that might attaint the Jury As in Ejectment of the Rectory of H. and other Tenants virtute cujus intravit in tenementa praedicta Verdict and Judgment de Rectoria Tenementis praedict ' Aliter in Judgment and Acts of the Court. it cannot be amended but on such Omission in Judgment or Acts of the Court it were amendable but not of the Declaration But in this case the Court conceived it well enough Tenements include a Rectory and that the word Tenements includes Rectory whether there be Glebe or not but not so of a Mannor Hill 25 and 26 Car. 2. Bale's Case If the Plaintiff in Ejectment declare of an House lying in two Parishes Declaration of an House lying in two Parishes and the House lies in one it 's good if the House do lie in either of the Parishes and do not lie in both of them yet the Declaration is good for there is certainty enough in it Pract. Reg. 110. It must be alledged in what Vill the Tenements are It must be alledged in what Vill the Tenements are the Plaintiff declares that P. C. by Indenture apud F. let unto him one House and twenty Acres of Land by the Name of all her Tenements in S. per Cur ' the Declaration is not good because it is not alledged in what Vill the Tenements are for the naming of the Vill in the Pernomen was not material and so Cr. El. 822. Gray and Chapman The Plaintiff declares of a Lease of one Messuage ten Acres of Land Where the Pernomen is not good twenty Acres of Meadow twenty of Pasture by the name of one Messuage ten Acres Prat. be it more or less after Verdict a Nil cap. per Billam was entred For upon the matter by the Plaintiff disclosed in his own Declaration he cannot have Execution of the Quantity found by the Jury for in the Lease there is not but ten Acres demised and these words in Judgment of Law cannot be extended to thirty or forty Acres and the rather because the Land demanded by the Declaration is of another nature than that mentioned in the Pernomen for this goes only to the Meadow and the Declaration is to the arable and Pasture Yelv. p. 166. In this Action it was moved in Arrest of Judgment That the Plaintiff had declared of two Demises viz. that J. S. demised ten Acres of Land to him and that J. N. had demised ten other Acres of Land to him Habend for the Term of five Years c. and that he entred into the Premisses demised to him by J. S. and J. N. in forma praedicta After Verdict upon Not guilty for the Plaintiff it was objected That in one of the Demises there is no certain Term or Estate for the Habend ' can only be referred to the Demise of J. S. for that begins a new Sentence but per Cur ' the Habend ' shall be a good Limitation of both Demises for five Years and when it is shewed that the Plaintiff entred into the Premisses demised to him in forma praedicta Forma praedict ' how construed that is an Averment that all was demised to him for that it is forma praedicta 2 Ventr 2. W. and M. In Ejectment the Plaintiff need not count of the demise of more Acres than the Acres out of which he was ejected Declaration need not be of more Acres than he was ejected and a demise may be pleaded of any Parcel without mentioning the entire as if one demise to me two Acres for Term of Years and I am ejected out of one Acre by a Stranger Now I shall have Ejectione Firme and count that one Acre was demised to me without any mention of the other Acre 1 Saunders p. 208. Where one declares on a fictitious Lease to A. One fictitious Lease to A. and another to B. the same term the last is not good for three years and within the same Term declares of another fictitious Lease to B. of the same Lands the last is not good for Trespass for the mean Profits must be brought in the first Lessee's Name ut dicitur As to the Form Ejectment was against two Declaration against two expulit and the Declaration was intraverat expulit and it was amended Yelv. 223. Vi armis are left out in the Declaration The Omission of vi armis in the Declaration Cro. El. 340. Griffith and Williams's Case saith it is but matter of Form and it is helped after a Verdict but in Cro. Jac. 36. and Yelv. 223. in Odington and Darby's Case where vi armis was left out and Error was brought in the Exchequer-Chamber it was not suffered to be amended but Judgment was reversed So Godb. 286. and so in Sykes and Coke's Case the Want of vi armis is not helped by a Verdict but in Error in B. R. if upon diminution it be well certified the Court will amend it Godb. 286. 2 Bulstr. 35. Cr. Jac. 306. Yelv. 223. Odington and Darby 1 Keb. 164. In B. R. the Transcript of Trespass and Ejectment was de Placito Transgressionis Ejectionis omitting Firme it was amended And in B. R. it would be amended in the Record it self before Removal 1 Keb. 106. Exception was taken in Godb. The Omission of Extratenet in the Declaration 60 71. because the Plaintiff did not say in his Declaration Extratenet but per tot ' Cur ' those Words were not material for if the Defendant do put out the Plaintiff it is sufficient to maintain the Action So if it be à possessione sua ejecit instead of à firma sua ejecit it 's good for ejecit à possessione inde inde hath relation to the Farm Godb. 60 71. In Ejectione Firme the Writ and Declaration were of two parts of certain Lands in H. and saith not in two parts in three parts to be divided and yet it was good as well in the Declaration as the Writ and this
Firme and it was not amended for tho' Ejectione Firme is but a Plea of Trespass in its nature yet the Actions are several and therefore the Venire fac ' ought to be accordingly Cro. El. 622. Clerk's Case Ejectione Firme of a Lease at Mockas in Lower Mockas The Defendant pleads Not guilty and found against him and it was moved to be a Mis-tryal for the Venire fac ' was awarded from Mockas where it ought to have been from Lower Mockas the Issue being Not guilty but if the Lease had been traversed it had been otherwise Williams and Whitin In Ejectione Firme the Plaintiff declares of a Lease of Land in B. Pernomen of c. in B. C. c. The Venue from B. is good 2 Rolls Rep. 479. Taylor and Lenn The Appearance and Issue were in Hill Venire fac ' amended 1 Jac. and the Bail was Crastino Pur ' and thereupon was the Declaration and Issue and Venire fac ' awarded bearing date the 23th of January 1 Jacobi and upon this a Distringas the 12th of February moved in Arrest That the Venire fac ' was awarded before the Appearance and Declaration to try the Issue in the same Action and cannot be good Per Cur ' it was amendable for the Roll is the Warrant of the Venire fac ' which being variant from it the Teste thereof shall be amended to be subsequent to the Issue joyned And whereas the Teste was the 23th of January which was Sunday it shall be amended it being but the Fault of the Clerk and misawarding of Process which is aided per Stat. 32 H. 8. and 18 Eliz. Cro. Jac. 64. Dolphin and Clark William Brown of Bradfeild was returned upon the Venire fac ' and Hab. Another Person sworn on the Jury who was not returned it 's no Error because Estopple Corpora and William Brown of Metfeld who was another Person and not returned was sworn yet this cannot be assigned for Error for it is against the Record which is That William Brown of B. was returned and sworn and he is estopt to say the contrary for then every Record may be brought in Question upon such Surmise Cro. Jac. 244. Bowss and Cannington A Vill and Parish are intended all one unless the contrary be shewed Vide Cro. Jac. 150. Batch and Gilbert The Court was moved to change the Venue in Ejectment laid in London because the Lands in Question did concern the Poor in London and therefore it was supposed they could not have an indifferent Trial. Per Rolls the Action is local and cannot be removed except you draw it from thence by your Plea Stiles Rep. 395. Hunslop and Johnson In Ejectione Firme upon a Lease made at D. Where it shall not come de Corpore Comitatus in Comitat ' E. of Land called S. If Not guilty be pleaded and a Venire fac ' awarded de Corpore Comitatus E. there not being any Vill named wherein the Land lies it is erroneous because this lies in some Vill out of which the Visne ought to have come to have tried it and in such case it ought not to come de Corpore Comitatus for this is larger Hob. p. 89. Rich and Sheere Venire fac ' awarded to the Coroners ita quod B. one of the Coroners se non intromittat because he was Servant of the High-Sheriff who was Lessor of the Plaintiff it was said the same was no Cause of Challenge but the Court conceived it was being confessed Moor 623. Higgins and Spicer In Ejectione Firme against four who plead Not guilty Where the Sheriff is of Affinity to the Defendant if the Plaintiff suggest that the Sheriff is of Affinity to one of the Defendants shewing how and upon this prays a Venire fac ' to the Coroners and the Defendant does not deny it and upon this the Venire fac ' is awarded to the Coroners it is well awarded For altho' none of the Defendants may challenge the Array because the Sheriff is of Affinity to one of the Defendants yet the Plaintiff ought at the Trial either to challenge the Array and so delay himself or he ought not to try this during the time that he his Sheriff which would be a great delay 2 Rolls Abr. 668. Fox and Shepheard in Exchequer-Chamber Vide Raymund 572. Consent may make a Trial had in a foreign County good In Ejectione Firme of three Acres of Land in Forresta de K. Visne de Forresta in Com. c. If the Defendant plead Non culp ' the Venue may be de Vicineto Forrestae for this is Lieu conus and by Intendment forasmuch as the Defendant had not pleaded this in Abatemenc this is out of any Parish or Vill 2 Rolls Abr. 621. Phillips and Evans In Ejectione Firme against Baron and Feme The Wife found Not guilty and a Special Verdict as to the Baron which was insufficient a Venire fac ' de nove awarded for both and why on Not guilty pleaded and a Venire fac ' granted the Jury find the Wife Not guilty and find a special Verdict as to the Husband which Special Verdict is afterwards adjudged insufficient a Venire fac ' de novo shall be awarded for both as well the Wife as the Husband And upon this new Writ the Wife may be found guilty because the Record and Issue is intire and for this their Verdict is insufficient in all and void Vid. infra Tit. Special Verdict CHAP. X. Of joyning Issue and Trial and Bill of Exception In what Cases there shall be Amendment THE Record of the Nisi prius was amended by the Plea-Roll 1 Brownl 133. Gaff and Randal Issue was joyned the Defendant pleads Not guilty and it was entred and the aforesaid Lessor likewise where it should have been praedict ' Querens similiter and it was amended So praedict ' Thomas similiter where it should be praedict ' Johannes similiter and it was amended 2 Brownl 102. Weeby's Case 2 Rolls Abr. 199. The Issue was Not guilty and a Venire awarded retornable 3 Trin. and the Essoyn adjourned by the Plaintiff till Michaelmass-Term and at the next Assises the Plaintiff notwithstanding the Essoyn and the adjourning it procured a Nisi prius by which it was found for the Plaintiff And per Curiam no Nisi prius ought to issue out in this Case because the Plaintiff himself by the adjourning the Essoyn cast by the Defendant until Michaelmass-Term had barred himself of all Proceedings in the mean time And the words in the Stat. W. 2. c. 27. Stat. W. 2. c. 27. are Postquam aliquis posuerit se in aliquam inquisitionem ad prox ' diem allocet ' ei Esson ' import That the Essoyn shall not be taken at the Retorn of the Process against the Jury altho' the Jury be ready at the Bar. But then it was surmised that the Defendant was not Essoyned for the Name of the Defendant is E.
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-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
that Exception seemed not valid Cr. El. 642. Hemsley and Price So in 3 Rep. Sir George Brown's Case Anthony is found Son but not Heir and yet without his being Heir the Plaintiff had no Title And yet in Cymbal and Sand's Case Cro. Car. 391. Gimlet and Sands the Court seemed to be of Opinion That tho' the Jury found that Humfrey had Issue by Hebell his Wife John unicum filium suum that not finding that he was Heir it was in case of his being Heir to a Warranty collateral was not good for he might have elder Sons by another Venter or there might be an Attainder or the Warranty might be discharged or released io his Life-time 2 Rolls Abr. 701. mesme Case The Jury found a Special Verdict on a Will in which they found A. had Issue two Sons B. and C. and do not find which of them was the elder and which the younger which is material in the Case This Verdict is not good for tho' B. is first named yet it doth not appear by this that he is the eldest Son M. 20 Jac. B. R. Peryn and Pearse Uncertainty as to part of a House The Defendant pleads Not guilty Part of an House the Jury find him not guilty for part and guilty de tanto unius Messuagij in occupatione c. quantum stat super Ripam Per Cur ' the Verdict is insufficient for the Uncertainty for tho' the Certainty may appear to the Jury yet that is not enough the Court ought to give Judgment oportet quod res deducatur in judicium The Court must be informed of the Certainty and it ought to appear to them Had they found him guilty of a Room it had been good So if he had been found guilty of a third part for of them the Law takes notice And an Ejectione Firme was brought for the Gate-house at Westminster and the Jury found the Defendant guilty for so much as is between such a Room and such a Room and it was adjudged good Guilty of a Room is good Marsh Rep. 47. Juxon and Andrews As to Certainty of Acres Ejectione Firme was brought of 400 Acres of Land As to Acres and the Jury find the Defendant quoad all besides three Acres parcel tenementorum praedictorum Not guilty Quoad c. and quoad the three Acres they find special matter and that G. A. the Lessor let the aforesaid three Acres to the Plaintiff and that he was possessed and that the Defendant ejected him out of the three Acres Parcel parcel ' tenementorum praedictorum and they did not find the Ejectment of the aforesaid three Acres c. and it may be the Ejectment was of other three Acres and for this Cause per totam Curiam held ill Cr. El. 642. Hemsley and Price Ejectment of 5 Acres if the Jury find the Defendant guilty in 8 Perches de terre parcel ' tenementorum praedictorum it 's a void Verdict because uncertain and no Execution can be made of Pieces 2 Rolls Abr. 694. Pawlet and Dr. Redman And this is the Difference between Trespass and Ejectment The Plaintiff declares of Trespass in one Acre in D. and abutts it East West North and South Upon Not guilty the Jury finds the Defendant guilty in dimidio Acrae infra script ' the Plaintiff shall have Judgment and so if they had found but one Foot of the Acre And it sufficeth to be found in one Moiety of the Acre bounded in this Action where Damages are only to be recovered But if it were in Ejectment the Verdict had been ill It must be certain in what part the Plaintiff must have his Hab. fac possess aliter in Trespass for it is not certain in what part the Plaintiff shall have his Habere fac ' possessionem Yelv. p. 114. Winckworth and Man In Ejectione Firme the Plaintiff declares of a Messuage 3000 Acres of Land 3000 Acres of Pasture in D. per nomina of the Manor of Monkall and 5 Closes per nomina c. The Jury give a Special Verdict quoad four Closes of Pasture containing by Estimation 2000 Acres of Pasture that the Defendant was not guilty quoad residuum they find the Matter in Law This Verdict is imperfect in all for when the Jury found the Defendant was not guilty of four Closes of Pasture containing by Estimation 2000 Acres of Pasture Quoad residuum must be certain it is uncertain and doth not appear of how much they acquit him and then when they find quoad residuum for the special Matter it is uncertain what that Residue is so there cannot be any Judgment given And a Venire fac ' de novo was awarded Cro. Jac ' 114. Woolmer and Caston In Ejectione Firme de septem Messuagiit sive tenementis De Messuagiis sive Tenementis is ill and the Verdict helps it not and Verdict pro Quer ' it's ill for the Uncertainty and the Verdict doth not help it And Hales refused to let the Jury find for the Plaintiff for the Messuages and Non culp ' for the Tenements But per Twisden had it been de uno Messuagio sive Tenemento vocat ' The Black Swan it had been good because the last part makes it certain Sid. 195. 2 Keb. 80. Cro. El. 186. On Special Verdict in Ejectment the Case was As to Acres and Parishes the Declaration was of several Messuages in the several Parishes of St. Michael St. James St. Peter and St. Paul and that part of the Premisses lie in the Parish of St. Peter and St. Paul and that there is no Parish called the Parish of St. Peter nor none called the Parish of St. Paul Per Cur ' the Copulative Et shall be referred to that which is real and hath existence ut res magis valeat not to make St. Peter's one Parish and St. Paul another but to make them both one Parish and the Words several Parishes are supplied by the Parishes before mentioned as 6 Ed. 3. Praecipe of 10 Acres in A. B. and C. there the Lands must lie in every one of the Vills but if the Praecipe were de Manerio de decem Acris in A. B. and C. there it would be well enough tho' the Manor lay elsewhere provided that ten Acres lay within the Vills aforesaid for then the last words are satisfied by the ten Acres Hardr. 1. 330. Ingleton and Wakeman Yet in Thomas and Kenn's Case P. 38 El. B. R. it 's said in Dyer ult Edit in margine 34. b. Ejectione Firme upon Title of Land of Sir Hugh Portman the Count was of an hundred Acres in D. and S. and Non culp ' pleaded the Jury found the Defendant ejected him of ten Acres only and shews not them in Certain and adjudged a good Verdict and the Plaintiff had Judgment It 's a Rule laid down Where ever but one Acre 〈◊〉 found certain â—ne may release â—ll the rest 1 Rolls 784. Rhethorick
by Baron and Feme on his Death she is liable as well as other Joyntenant Surviving 1 Keb. 827. Morgan and Stapel's Case The Lessor of the Plaintiff by several Rules of Court on Demand The Lessor of the Plaintiff where to pay Costs ought to pay Costs upon the Insufficiency or Skulking of the Plaintiff in Ejectment 1 Keb. 17. The Lessor of the Plaintiff is liable to pay Costs tho' he shall never be forced to give Security for them but the Lessor of a Tenant in Possession is not liable to Costs because tho' he may come in gratis and defend his Title Tenant in Possession liable to pay Costs by the Law yet the Tenant in Possession is only liable to pay Costs by the Law But only by the Course of the Court unless the Tryal be by the Lessors means brought to the Bar and then he shall never have a second Tryal at Bar before he hath paid the Costs of the former Tryal but yet the Court for Non-payment of Costs will not hinder proceedings in the Country Per Cur. 1 Keb. 106. Latham's Case Note In Judgment against his own Ejector no Cost to be paid by the Tenant in Possession Upon a Judgment against his own Ejector in defalt of confessing Lease Entry and Ouster according to Rule of Court without Special Rule no Costs shall be paid by H. The Tenant in Possession that made the defalt c. Contra upon Tryal had against H. because the Plaintiff hath the Benefit of the Suit viz. Judgment against his own Ejector whereby he may recover the Possession 1 Keb. 242. Verdict was for the Defendant Allegation by the Plaintiff to save his Cost not allowed and the Plaintiff to save his Costs alledged That the Venue was misawarded and that there was a Fault in the Declaration but resolved per Cur ' the Defendant shall have his Costs 2 Rolls Rep. 327 Pritchard and Reynell Palmer 365. mesme Case The Plaintiff in Ejectment was nonsuited The Plaintiff not to take advantage of his own insufficient Declaration which was recorded and the Defendant sued for Costs upon the Stat. 4. Jac. c. 3. The Plaintiff alledgeth insufficiency in his own Declaration to avoid Costs upon the Words of the Stat. That in Ejectione Firme and every other Action where the Plaintiff might recover Costs c. If it had been found for him that then upon Nonsuit c. in every such Action the Defendant shall have Judgment to recover Costs against him and the Plaintiff pretends in such Action he cannot recover where the Declaration is not sufficient But per Cur ' there is no reason the Plaintiff should take Advantage of his insufficient Declaration Palmer's Rep. 147. Dove and Knapp Debt was brought on the Stat. Costs on Stat. 8 Eliz. on Nonsuit and the Stat. mistaken of 8 Eliz. for Costs in an Ejectione Firme the Plaintiff being nonsuited supposing the Statute to be made ad Parliamentum tentum 8 Eliz. whereas the Parliament began Anno quinto and by Prorogation was held in 8 Eliz. so it ought to have been ad Sessionem Parliamenti tent ' Anno octavo Eliz. and ruled to be ill Cro. Jac. 111. Ford and Hunter If no Continuance be entred Costs for want of Continuances entred then a Discontinuance may be entred and he may recover Costs in Ejectment 2 Bulstr 63. Per Stat. When Nonsuit shall be for want of a Declaration 13 Car. 2. c. 11. Nonsuit shall be for want of a Declaration before the end oâ— the next Term after Appearance and Judgment and Costs against the Plaintiff Statâ— 13 Car. 2. c. 11. In all personal Actions and in Ejection Firme for Lands c. depending by Originâ—â— Writ There need not be 15 days between the Teste-day and Day of Retorn after any Issue therein joyned anâ— also after any Judgment had or obtained there shall not need to be Fifteen Days between the Teste-day and Day of Retorn oâ— any Writ of Venire fac ' Habeas Corpus Juratt ' Distringas Jurat ' Fiere fac ' or Cap ' ad sat ' and the Writ of Fifteen days between the Teste-day and the day of Retorn of any such Writ shall not be assigned for Error Stat. 13 Car. 2. c. 11. Infant Lessor in Ejectment shall pay Costs 3 Keb. Infant Lessor pays Costs 347. Masten and King Upon a Verdict against all Evidence the Court will tax Costs and will not suspend it till a new Tryal 1 Keb. 294. If the Defendant whose Title is concerned in an Ejectione Firme will not defend his Title to the Lands in Question and the Verdict do pass against the Plaintiff the Ejector may release the Damages Pr. Reg. 100. Note This Rule as to paying of Costs if a Man had a Verdict in Ejectment The sole Remedy for Costs in the first Tryal is by Attachment unless the second Tryal be in the same Court after a Verdict and Costs taxed and an Attachment for not paying them and whereas he cannot procure them of him who ought to pay them he sues the same Party for the same thing again in an other Court and he shews this by Motion and prays he may not proceed till Costs paid yet the Court will not grant it but he ought to resort to the Remedy of the Process of the Court where he recovered for these Costs and so it is if it was in the same Court for Costs for not going on to Tryal but if it were for Costs after a Verdict in the same Court there upon Affidavit of this it 's good Cause to stay the second Tryal for the same thing unless the Costs of the first be paid Sid. p. 229. Austin and Hood Upon a Tryal at Bar in Ejectment where two were made Defendants Where Costs are confessed on Lease Entry and Ouster c. and that the other did not and had entred into the Common Rule and at the Tryal one appeared and confessed Lease Entry and Ouster but the other did not and after Evidence given the Plaintiff was Non-suited and Costs taxed for the Defendants Per Cur ' both these Defendants are intitled to the Costs and he that did not appear might release them to the Plaintiff But the Court said If there should appear to be Covin between the Lessor of the Plaintiff and the Defendant who did appear to release the Costs they would correct such Practice when it should be made to appear 2 Ventr 2. W. M. Fagge and Roberts Berkley had Judgment in Ejectione Firme in C. B. and Execution of his Damages and Costs Foot brings Error and the Judgment is affirmed whereupon B. prays his Costs for Delay and Charges but could not have them for no Costs were in such Case at Common Law And Stat. 3 H. 7. c. 10. gives them only where Error is brought in delay of Execution and here tho' he had not Execution of the Term yet he had it of his
a Scire fac ' against his Heir who was Issue in Tail and the Sheriff retorns Scire feci and upon this Execution without any Plea pleaded by the Heir and the Heir being ousted by the Execution brought Ejectione Per Cur ' the Heir shall be bound by this Execution and he has no Remedy neither by Ejectment Writ of Error nor by Aud ' Querela nor by any other way but against the Sheriff if he have made a faux Retorn of the Scire fac ' Siderfin p. 55. Day and Guilford Rent granted with a Proviso Upon Entry of Grantee of a Rent and Retainer till Satisfaction for Arrear he may upon such Interest quousque maintain an Ejectment and so the Lord upon Scisure of a Copyhold till the Heir come to be admitted 1 Keb. 287. in Pateson's Case that if it be Arrear the Grantee may enter and retain until he be satisfied This Proviso shall enure to grant a certain Estate to the Grantee when he enters for Non-payment And tho' the Grantee by such Entry cannot gain a Freehold yet he had such an Interest as he may make a Lease of it and his Lessee may have an Ejectment for the Law does not give an Interest to any but it also gives a Remedy for it and if he have Remedy to hold such Possession he ought to have this Action which is the lowest Degree of gaining Possession So in the Countess of Cumberland's Case Anno 1659. of Copyholds there was a Custom That if such Tenant who claims Tenant Right does not pay his Fine the Lord may enter and retain the Land until he be satisfied and adjudged that his Lessee upon such Entry for Non-payment may maintain Ejectione Firme Siderfin p. 223. Jemot and Cowley 1 Roll. 784. 2 Keb. 20. mesme Case Cro. Jac. 511. Havergell and Hare Hill 13 Jac. B. C. Rot. 868. Brown and Hagger cited in Price and Vaughan's Case is full in the Point and Trin. 14 Car. 2. Roll. 2511. Eyer and Malin Ejectment upon a Lease of the Lord Byron special Verdict found Sir J. Byren seised in Fee by Indenture grants a Rent Charge for life to commence after the Death of the Grantor and if the Rent be Arrear that the Grantee may euter and take the Profits without Account till the Rent and Arrears shall be paid The Rent was Arrear and the Grantee enters and makes a Lease to the Plaintiff and Bridgman and the rest praeter Browne agreed for the Plaintiff It was said in the Case of Holmes and Bayly By Tenant at Will That Tenant at Will may make a Lease for years to try a Title of Land and so may a Copyholder Stiles Rep. 380. Ejectment is brought by Cesty que Trust. By Cesty que Trust Now if the Trustee of the Lease be Lessor in Ejectment he may disclaim in pays if he have not accepted the Trust which will avoid the Plaintiff's Title at the Tryal 2 Keb 794. Cheek and Lisle Vendee of the Commissioners on the Statute of Bankrupts of Lands by Deed Indented By a Vendee of the Commissioners of Bankrupts cannot maintain by his Lessee an Ejectione Firme before Inrollment of the Deed altho' it be inrolled after the Action brought And the Difference between this and the case of a common Bargain and Sale per Stat. 27 H. 8. c. 10. of Uses is For there the Estate passeth by the Contract and the Use is executed by the Statute then comes the Act of Inrolments of the same year and enacts That no Estate shall pass without Inrolment and this within Six Months But the Commissioners here have not any Estate but only a Power which ought to be executed by the Means prescribed by the Statute with the Circumstances there directed which is not only by Deed indented but inrolled also Sir Tho. Jones p. 196. Perry and Bowers Note Lessor of Tenant in Possession hath no Priviledge in Ejectment tho' he be a Lord of Parliament unless he be Tenant in Possession himself 1 Keb. 329. CHAP. III. Of Process in Ejectione Firme 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 Where Amendment shall be by the Paper-Book Of Amendments of Originals 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 the Stat. 13 Car. 2. c. 2. Of Bail or Error The Original is thus REX c. Vic Midd salutem Si A. â— fecerit te securum tunc pone p 〈…〉 pleg C. D. nuper de London 〈◊〉 Ita qd sit coram Iusticiariis nostr apud 〈◊〉 tali die ad respondend W. â— â—e Plito quare vi armis unum Messâ—â—g decem Aeras Terre tres Aeras Pasture cum ê‘tinen in D. in Comit tuo que S. W. vid eid W. dimisit ad terminum qui nondum preteriit intravit ipsum a Firma sua ejecit alia enormia ei intulit ad grave damnum ipsius W. contra pacem nostram Dom Regis nunc c. T. c. On the Retorn in B. R. quindena Pasche ubicunque Writ Process In Ejectment upon a Demise by the Lord L. who was no Peer yet upon Non Culp ' good he being the same Person that did demise Allen 58. Bernard's Case So you see the Original Writ in C. B. in Ejectment is an Attachment or a Pone per vadios salvos plegios c. and Summonitus in Ejectment was held to be an Error In Ejectione Firme brought by Original Writ out of Chancery Summonit for Attachment is Error after Verdict the Record upon the Issue-Roll was entred in this manner ss Simo Edulph nuper de C. summonit fuit ad respond Tho. R. de plito quare vi armis c. And after Verdict pro Quer ' it was moved That this was a Vicious Original and not aided by any of the Statutes of Jeofail's for it appears by the Entry of it that the Original was a Summons where it ought to have been an Attachment which the Court granted but upon search there was no Original filed Aliter if there be no Original and then per Cur ' seeing there is no Original filed it shall be intended after Verdict that once there was a good Original which is now lost and that the Plaintiff's Clerk had mistaken in the Recital of it which after Verdict is not material Reg. Orig. 227. b. Saunders Rep. 1. p. 317. Redman and. Edolph Sider 423. mesme Case 2 Keb. 544. mesme Case So in Jennings and Downe's Case Error was assigned because that it appeared by the Record that the Declaration was before the Plaintiff had any Cause of Action but the Council of the other side said There is a wrong Original certified and prayed to have a