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
of the Land by the Defendant this was adjudged a good Entry for the Land in both the Villages per totam Curiam So of Lands in one County Palmer 402. Argoll and Cheney The Corporation of Mercers were seised of the Lands in Question By Corporation in the several Possessions of Two Men and being so seised made a Deed of Lease to the Plaintiff and a Letter of Attorney to deliver the Deed and the Possession The Attorney entred upon the Possession of one of the Men and there delivers the Deed and after enters in the Possession of the other and there doth deliver the Deed the Question was If it were good for the Land for which the second Delivery was because one Deed cannot have two Deliveries but the Court held it shall be intended the first Delivery was good for all and it shall not be intended but that the two Men had Possession only as Tenants at Will to the Corporation and then the Delivery of the Lease in one place is good for all and it shall not be intended they had an Estate for Years or Life except the contrary be shewed Baron and Feme joyn in a Lease by Indenture to B. By Baron and Feme rendring Rent for Years and make a Letter of Attorney to seal and deliver the Lease upon the Land which is done B. brought Ejectment and declares of a Demise made by the Baron and Feme and upon evidence to the Jury it was ruled per Cur ' That the Lease will not maintain the Declaration for a Feme covert cannot make a Letter of Attorney to deliver a Lease of her Land but the Warrant of Attorney is meerly void so that this only is a Lease of the Husband which is not maintained by the Declaration But Hopkins's Case in Cro. Car. 165. is against this where the Plaintiff declared of a Lease made by Baron and Feme On Not guilty it appeared on the Evidence that the Lease was sealed and subscribed by them both and a Letter of Attorney made by them to deliver it upon the Land Per Cur ' it 's a good Letter of Attorney by them both and the Lease well delivered and it is a Lease of them both during the Husband's Life Yelv. Wilson and Rich. 2 Brownl 248. Plomer's Case Cro. Car. 165. Hopkin's Case 2 Leon. 200. CHAP. V. Of the Rule of confessing Lease Entry and Ouster and Rules of Court relating thereunto 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 and of the Ejectment-Lease HOW necessary the Knowledge of this Practice is to one who would manage his Client's Cause with Discretion and Success is sufficiently apparent and needs no further Recommendation It must be observed as was adjudged in the Mayor of Bristol's Case that there Ejectment in Inferiour Courts or in any other Inferiour Court they cannot make Rules to confess Lease Entry and Ouster as in the Courts of Westminster but they must actually seal the Lease as at Common Law And so it was in Sherman and Cook 's Case where it was moved That the Defendant who by Habeas Corpus had removed an Ejectment out of the Sheriff's Court might consent to a Rule of Court that he should confess Lease Entry and Ouster but the Court refused the Defendant not being bound by the Rule below because they cannot proceed by way of delivering Declarations to the Tenants in Possession but as at Common Law by actual Lease sealed Tryals below how And by Hyde all the Tryals below are tried in the casual Ejector's Name by him that is Tenant in Possession to avoid Charge P. 16 Car. 2. B. R. M. 16 Car. 2. B. R. Where the Freeholds are several Where the Freeholds are several the Plaintiff must sever his Action and one Defendant gives a Note of what is in his Possession the Plaintiff must sever his Action else the Defendant might lose his Costs for which on severance he would have legal Remedy And here is no Inconvenience because the Plaintiff may take Judgment against his own Ejector for the rest and the Defendant shall not confess Lease The Defendant not to confess Lease Entry and Ouster for any more than is in his own Possession Entry and Ouster of all but only of so much as is in his own Possession which is the only way to save his Costs And Medlicot's Case was where the Plaintiff's Title is one by the Demise of A. and the Defendant's several the Plaintiff offered to secure Costs severally to all but he was ordered by the Court to deliver several Declarations that none may defend for more than is in his own Possession else the Plaintiff might clap in an Acre of his own to save Costs and Agreements of Parties are no Guide to Rules but would make the Court but Arbitrary and this Rule is no hindrance of Tryals at Bar where many Defendants have but the same Title Tr. 21 Car. 2. B. R. Medlicot's Case In Ejectment the Ouster was confessed of a third part of a fourth part of a fifth part in five parts to be divided which by Hide is very inconvenient The Inconvenience of the new Course of leaving Declarations and crept in since the new Rule of leaving Declarations the Lands being in several places distinct from each other and may be held by several Titles which could never be had the old Course of actual Ejectment continued but on suggestion that the Title was but one and one Plaintiff and one Defendant it was admitted M. 15 Car. 2. B. R. Cole and Skinner In Ejectment where there are divers Defendants who are to confess Lease Entry and Ouster if one doth not appear at the Tryal the Plaintiff cannot proceed against the rest but must be nonsuited 1 Ventr In Ejectment the Plaintiff shewed Copy of four Acres In what case the Court will give leave to retract the general Confession of Lease Entry and Ouster to save Costs the Title being on Will or no Will but not being able to prove where particularly the Court gave leave to the Defendant that claimed by the Will to retract the general Confession of Lease Entry and Ouster as to this and to have Judgment against the casual Ejector M. 27 Car. B. R. Hide and Preston If the Defendant refuse to confess Lease Entry and Ouster the Rules are thus Where the Defendant was by Rule of Court at the Tryal which was to be at the Bar to appear and confess Lease Of the Defendant's Refusal to confess Lease Entry and Ouster Entry and Ouster and to stand upon the Title only yet at the Tryal he would not appear upon which the Plaintiff was Non-suit and yet Judgment was for the Plaintiff
Anno sexto supradict ' entred and ejected him so there is not any day mentioned After Imparlance as the Course in the Common Bench is the Plaintiff made a second Declaration and there without any space made the Ejectment is supposed to be the 26th of May Anno supradict ' and the Writ was brought of this Ejectment 7 Jac. The Defendant pleads Non Culp ' and found against him and Judgment and this was assigned for Error The first Declaration is most material per Cur ' the first Declaration is the principal and material Declaration and the second is but a Recital of the first And if any matter of Substance be omitted in the first it cannot be aided and amended by the second for that begins with an Alias prout patet so it is but a meer Recital and therefore if the first be not good tho' the second be good and he plead thereto and the Trial is thereupon yet the Judgment is erroneous But as this Case is the first Declaration is well enough for he declares of a Lease the 25th of March 6 Jac. which is the first day of that year and the Declaration quod pâ—stea scil ' 6 Jac. The Defendant ejected him is certain enough for the year wherein he made the Ejectment so it appears to be after the Lease made and in the same year 6 Jac. wherein the Ejectment was and the Action is brought the. 7 Jac. and the Ejectment being made between the making of the Lease and the Action brought it 's good enough tho' there is not any certain day alledged Cro. Jac. 311. Merril and Smith Original in Ejectment was brought against H. Simul cum and three others and the Plaintiff counts against three of the Defendants and no Simul cum against the fourth and Judgment was arrested for this 2 Brownl 129. It 's a sure Rule Entry and Ejectment supposed before the Commencement of the Lease if the Entry and Ejectment be supposed in the Declaration to be before the Commencement of the Lease the Declaration is void as in Powre and Hawkins's Case cited Yelv. 182. in Davis's Case The Plaintiff declares upon a Lease of E. 27 April Anno sexto and lays the Ejectment to be the 26th of April Anno sexto supradict ' the Declaration was adjudged ill for this cause but the Court will and have help'd it by as favourable Construction as may be as in the principal Case in Yelv. The Plaintiff declares of a Lease made by C. 6 of May Anno septimâ— of a Messuage c. and that the Plaintiff entred and was possessed quâ—usque postea the Defendant 18 die ejusdem mensis Maij Anno sexto supradict ' ejected him it was moved in Arrest of Judgment upon Verdict for the Defendant to save Costs that the Declaration was insufficient This Action is grounded on two things viz. the Lease and the Ejectment for that this Action was grounded on two things viz. upon the Lease and upon the Ejectment and these two ought to be one after the other and in this Case the Ejectment is supposed an Year before the Lease made for the Lease is Anno septimo and the Ejectment supposed to be made Anno sexto yet the Declaration was adjudged good and the word sexto to be void For the day of the Ejectment being the 18th day ejusdem mensis it shall be intended to be in the same year in which the Lease is supposed to be made Brownl p. 146. mesme Case So in Adams and Goose's Case Cro. Jac. 97. In Ejectment the Plaintiff declared of a Lease the 6th of Septemb. and that he was possessed and that postea scil the 4th of Septemb. the Defendant ejected him and by three Justices the Declaration was held good and the 4th of September is impossible and repugnant and the postea ejecit is well enough But in â—â—odgaine's Case 1 Siderf the Jury found that J. N. let to the Plaintiff for five years the 24th of June Anno 1650. by force whereof the Plaintiff enters the 24th of June 1650. the Lease being to commence à die datus and that postea scil 24th of June 1650. the Defendant ejected him so that the Entry and Ejectment was supposed before the Lease and Judgment was against the Plaintiff for this Defect The Council of the contrary side stood much upon the Case of Adams and Goose but per Cur ' that Case differs from this for in Adams's Case it appeared to be that he entred by sorce of the Lease and was possessed thereof till he was ejected but in this Case he entred the 24th of June which was before the Lease commenced and Judgment was given 1. Because he said he entred the 24th of June and so was a Dâ—isseisor 2. Because the Declaration is contrary in it self And Clifford's Case Dyer 89. a. and Grâ—en and Moody's Case were cired Bridgman said He found no reason for Adams and Goose's Case Yelv. 182. Davis and Pardy Cro. Jac. 97. Adams and Goose Siderf p. 8. Goodgaine and Wakefeild Ejectione Firme of a Lease of H. Virtute cujus iisdem die anno he ejected him how construed P. 22 of May 20 Jac. of c. Hab. à primo die Maij for three Years virtute cujus the Lessee entred and was possessed quousque postea scil eisdem die anno the Defendant ejected him It was assigned for Error that iisdem die c. refers to the first day of May which is ultimum antecedens and then the Ejectment is alledged before the Lease made so the Declaration not good but per Cur ' the Allegation of the first day of May is but for the beginning of the Term and the Declaration being quod virtute dimissionis he entred postea iisdem die Anno c. that refers to the day of the Lease made otherwise he cannot be possessed virtute dimissionis and Judgment was affirmed in the Exchequer Chamber Cro. Jac. 662. Rutter and Mills The common Mistake has been as is observable in our Book-Cases in laying the Lease to be à die daius and the Entry the same day which is a Disseisin not purged by the Commencement of the Lease for where an Interest passeth a is exclusive and so the Entry the same day was before the Lease was to commence and is a Disseisin but where no Interest passes as in Cases of Obligations Contra. In Douglas and Shank's Case Cr. El. 766. the Plaintiff declares of a Lease for years Habend ' à die datus virtute cujus dimissionis he entred Virtute cujus and was possess'd until he was ejected by the Defendant Not guilty pleaded The Declaration is ill because the time of the Entry is not alledged for if he entred at the day of the Demise he is a Disseisor and the Action not maintainable Virtute cujus how taken the strongest shall be taken against the Plaintiff viz. That he entred the day of the Lease made
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
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
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.
they were fined severally where the Ejectment was against them all joyntly but because they were found several Ejectors of several Parcels the Judgment was good scilicet quilibet capiatur quoad his Parcel and if it had not been joynt it had not been been sufficient Bendl. 83. Darcy and Mason The Plaintiff shall be in Misericordia but once The Plaintiff shall be in Misericordia but once As Ejectment with Force three of the Defendants were found Guilty of the House and ten Acres of Land and Not guilty for the Residue The fourth Defendant is found Not guilty generally And Judgment was entred That he should recover his Term in the House and ten Acres of Land and Costs against the three Defendants and that the said three Defendants capiantur and that they be acquitted quoad residuun and that the Plaintiff quoad the three Defandants pro falso clamore for so much as they were acquitted pro falso clamore against the fourth Defendant sit in Misericordia It s good enough and the course that the Plaintiff in such Cases be in Misericordia but once which is specially entred Crok Car. 178. Dockrow's Case In Croke and Sam 's Case Stiles 122. 346. The Judgments was ideo considerat ' est qd recuperet and there wants Def. capiatur it is Erroneous Form of the Entry in Case of the Death of the Plaintiff or Defendant Note That 3 Plaintiffs in Ejectment were and on general Issue it was found for the Plaintiffs One of the Plaintiffs died during a Curi advisare And 4 days after the Verdict given was moved to stay Judgment a Special matter in Law whereof the Justices were not resolved and gave day over and in the mean time one of the Plaintiffs died This shall not stay Judgment for the Postea came in 15 Pas which was the 16 of April at which Day the Court ought to give Judgment presently But Cur. advisare vult and on the 19 of April one of the Plaintiffs died and the favour of the Court shall not prejudice for the Judgment shall have relation to the 16 day of April at which time he was alive 1 Leon. 187. Isley's Case In Ejectment two Defendants were found Guilty The Death of one Defendant shall not abate the Writ and the other not The one that is Not guilty dies The Plaintiff shave Judgment against the other So it is if he that is Dead had been Guilty because this Writ is but as a Trespass where the Death of one Defendant shall not abate the Writ Moor 469. 673. Griffith and Lawrence's Case Ejectione Firme against Baron and Feme Ejectione Baron and Feme Baron dies And Verdict pro Quer. and after between the Verdict and day in Banco the Baron dies and therefore the Court in Lee and Rowley's Case 1 Rolls Rep. 14. advised the Plaintiff to relinquish this Action and only to enter the Verdict for Evidence for if Judgment is given against the Defendant and one is dead at the time of the Judgment then this will be Erroneous per Dodderidge and Mann Preignotary But Coke said The Plaintiff may make allegation that the Husband is dead and shall have Judgment against the Wife And it hath been adjudged lately Ejectment against Baron and Feme which are but one person in Law yet if the Husband dies the Suit shall proceed against the Wife Hardr. 61. But in Rigley and Lee's Case Cr. Jac. 356. Ejectment against Baron and Feme after Verdict Baron dies before the day in Banco because it is in the nature of a Trespass and the Feme is charged for her own fact Per Cur. The Action continues against the Wife and Judgment shall be entred against herself because the Baron was dead Ejectment against divers Record where not to be amended all plead Not guilty and divers Continuances were between them all where revera one of the Defendants was dead after Issue joyned and a Verdict was after found pro Quer. and the Record was moved to be amended Per Cur. we cannot do it After Verdict and before Judgment the Plaintiff may surmise that the Defendant was dead before the Verdict and Continuance was against him One Defendent dies after Issue joyned as in full Life Jones 410. Sir John Fitzherbert versus Leech And In Ejectment to try the Custom of Copyhold Suggestion entred on the Roll one Defendant being dead after Non-suit The Plaintiff was Non-suit and one of the Defendants being dead Hales Chief Justices advised to Enter a Suggestion on the Roll that one was dead else the Judgment for the Defendants on the Non-suit will be Erroneous as to all M. 23 Car. 2. B. R. Hawthorn and Bawdan Ejectment was brought against seven Ejectment against seven and one dies hanging the Writ and Error brought one dies hanging the Writ and the Judgment was given against the six without speaking any thing of the seventh where the Judgment ought to be against them that were in Life and a nil cap. as to him that was dead Otherwise there is a variance between the Writ and Judgment And a Writ of Error was brought but it was not well brought for the seventh joyned in the Writ of Error which was ad grave damnum of all the seven But had it been omitted ad grave damnum of him that was dead it had been good 2 Rolls Rep. 20. Bethell and Parry Pal. 152. Mesme Case In Hide and Markham's Case it was Ruled After Verdict and before Judgment the Plaintiff dies and Judgment his given for him the same Term. That if one bring Ejectione Firme in B. R. and there had a Verdict in a Tryal at Bar and after before Judgment he dies and after the Judgment is given for him the same Term this is not Error for that the Judgment shall relate to the Verdict But if the Verdict pass against the Plaintiff at the Nisi prius and after before the Day in Bank he dies and after Judgment is against him this is Error for as much as Judgment is given against a dead Man 1 Rolls Abr. 768. and Jurdan's Case ibid. The Plaintiff in Ejectment dies ' The Plaintiff dies after Verdict and Judgment was not staid and why Addison's Case Mod. Rep. 252. Yet as that case was the Court would not stay Judgment for between the Lessor of the Plaintiff and the Defendant there was another Cause depending and tried at the same Assizes when this Issue was tried and by Agreement between the Parties the Verdict in that Cause was drawn up but agreed it should ensue the Determination of this Verdict and the Title go accordingly Now the submission to this Rule was an implicit Agreement not to take advantage of such occurrences as the death of the Plaintiff whom we know no ways to be concerned in point of Interest and many times but an imaginary person Per Cur. We take no notice judicially that the Lessor of the Plaintiff
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
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
and this must be proved to be done within the time limited by the Statute but he need not to shew a Right in him that presented him 2 Keb. 48. Siderf 221. Dr. Crawley's Case In Evidence an Institution without Presentation Institution without presentation proved no Evidence or Copy of it was refused in Court albeit a Presentation may be made by Parol but proof must be made of it ibid. Admission Institution and Induction upon the Presentation of a Stranger is a good matter to bar him who had Right in an Ejectione Firme and to put him to his Quare Impedit Sid. 221. Dr. Crawly's Case In Ejectment Evidence as to an Appropriation The Defendant had a Lease of a Prebend made in tempore Hen. 8. and expired and he now claimed a Lease from a nominal Prebendary thereof founded in the Cathoedral Church of Lincoln The Plaintiff claimed under Letters Patents from King James 1. and the Possession was according to this Grant and it was a Question if they ought to shew how it came to the Crown but the Possession having gone with it The Court did presume the Grant to King James to be lost and Judgment pro Quer. as in the Case of an Impropriation Hales being Councel It was insisted the Impropriation was presentative till Ed. 4th time and could not be appropriated withouth the King's Licence quod Curia concessit and he could not produce the Licence yet because it was enjoyed ever since Edward the 4th time as Appropriate the Court did intend a Licence and that the Patent was lost before the Inrolment and a Verdict accordingly p. 27. Car. 2. Coterel's Case In Ejectment for a several Fishing On Not guilty Where constant enjoyment good Evidence if the Plaintiff derive a Title as high as the Abbies he need not shew any Patent or Derivation from the Crown but the constant enjoyment is sufficient unless one be sued by the Crown 14 Car. 2. B. R. Sir Chr. Guise and Adams In Evidence to a Jury at Bar The Defendant made Title by the Feoffment of the Lord M. to his Son in Law the Earl of C. on which there was no Livery nor Inrolment but both lived together but the Father was reputed Owner and paid the Rates and a year after released and confirmed to his Son and his Heirs and this Title was opposed because there was never any inception of an Estate at Will no entry being proved by the Son after the Deeds made What entry shall be intended and need not be proved But per Cur. The Feoffment with future Conveyances is sufficient both living together the entry shall be intended and need not be specially proved whereupon the Plaintiff was Non-suited M. 20. Car. 2. B. R. Dunaston and Sir Jerom Whichcoat In Berry and Wheeler's Case in Ejectment Extent of a Rectory on Elegit The Council excepted to an Extent under which the Plaintiff claimed because after Execution of Fieri facias for part Elegit was for the whole without mentioning any thing levied by the former Elegit which recited the Fieri facias but was returned nihil sed non allocatur 2. It was further objected That it appears that more than a Moiety is extended For it s said That the Defendant was seized of a Rectory of the value of 100 l. and other Lands appurtenant que quidem Rectoria sine terris Glebalibus is the Moiety But per Cur. it may be understood of the Church-yard c. distinct from other Lands pertaining and as long as the Extent continues it cannot thus be denied but there is Glebe M. 14. Car. 2. B. R. Berry and Wheeler In Ejectment Defendant not to give in Evidence a former Mortgage made by himself The Defendant shall not give in Evidence a former Mortgage or Conveyance made by himself and therefore in such Cases it s left for him that hath the former Mortgage to get himself made Defendant before the Cause comes to Tryal If an ancient Deed of Feoffment be shewed Long Possession but not Livery upon it if Possession have gone along with the Deed this is good Evidence to a Jury to find Livery 2 Rolls Rep. 132. He which affirms the matter in Issue ought first to make proof to the Jury and when the Priories were suppressed a Commission issued Whether parâ—el of a Prioâ—â—y Certificate and a Certificate upon this upon all the Possessions and their values which belonged to the Priories and therefore it is good Evidence in Issue whether Land was parcel of the Priory or not that no mention of it is in the Certificate Lit. Rep. 36. Variance of the Evidence from the Declararation or what Evidence shall be said to maintain the Issue In Ejectione Firme if the Plaintiff Declares upon a Lease made by two Lease by two and one was Lessor for life remainder to the other and gives in Evidence that one of the Lessors was Lessee for Life the Remainder to the other this is a material variance from the Declaration in as much as this is only the Lease of the Tenant for Life 2 Rolls Abr. 719. England and Long. So if a Man Declare a Lease by two Lease by two where one had nothing in the Land where one had nothing in the Land and so void as to him yet this is a material variance id ibid. So if a Man Declare of a Lease made by Baron and Feme and gives in Evidence a Lease made by the Husband only this is a material variance So it is By Joynt Lease and they are Tenant in Common if a Man Declare of a Joynt Lease made by two and it appeareth upon the Evidence That the two Lessors were Tenants in Common and so several Leases this is a material variance But otherwise it is if it appear upon the Evidence That the two Lessors were Copartners for this is one Lease being made by them Copartners Cr. Jac. 166. Mantler's Case If the Declaration be of a Lease of three Acres The Acres and Lease of a Moiety a Lease of a Moiety in Evidence will not maintain the Declaration for it is not the same Lease but in Seabright's Case B. R. 40 El. and Cooper and Franckling's Case 14 Jac. Ejectione Firme of 20 Acres the Jury found him guilty of the Moiety and Not guilty of the residue the Plaintiff shall have Judgment against Plowden 224. Brake and Right 's Case The Declaration in Ejectment was of a fourth part of a fifth part in five parts to be divided and the Title of the Plaintiff upon the Evidence was but of a third part of a fourth part of a fifth part in five parts to be divided which is but a third part of that which is demanded in the Declaration And it was said The Plaintiff cannot have a Verdict Verdict to be taken according to the Title because the Verdict in such a Case ought to agree with the Declaration but
is the Party interested What notice the Court takes of the Lessor of the Plaintiff and therefore we punish the Plaintiff if he Release the Action or Release the Damages It was said too in behalf of the Judgment That there was a Man of the same name in the County with him that was made Plaintiff And by the Court that is sufficient and the Court shall intend it to be him were there any one of the same name in rerum natura It is said in Cooper and Franklin's Case Ejectment for the whole and a Title but to a Moiety Judgment shall be for the whole If one brings Ejectione Firme for the whole having Title but to a Moiety that iâ— hath been adjudged against Bracebridges's Case in Plowd He shall have Judgment for a Moiety 3 Bulstr 185. In what Cases and for what Causes Judgments in Ejectment are Arrestable or Erroneous In Savern and Smith's Case Judgment for the whole where it ought to be for a Moiety Judgment was de integris tenementis where it ought to have been for a Moiety The Judgment was given for the whole and intire Damages assessed by the Jury It s Error Croke Car. 7. The Declaration was Qd. per Indentur dimisit decimas garbar Rectorie de c. una cum quodam horreo gardino eidem Rectorie pertin And the Judgment on Demurrer on the Plea was Ideo c. qd praed Querens recuperet vers praefat Def. terminum suum praedict adhuc ventur ' de in Rectoria horreo gardino praed More Damages found than the Plaintiff counts cum pertin damna sua And more Damages is found in the return of the Inquisition than the Plaintiff counts And the intire Rectory was not Let and no Term supposed in it in the Declaration but in the said three particulars and no express Judgment is given for the Tithes and Damages are assessed for the expulsion of the intire Parsonage of which there was no complaint It seems its Erroneous Dyer 258. Plow 19. 1 Bulstr 49. 10 Rep. 117. 3 Cr. 544. Ejectione Firme was brought against four Against Gardian and Infant qd capiantur whereof one was an Infant and appeared by his Guardian and Verdict was pro Quer. and Judgment against them quod capiantur But no such Judgment ought to be against an Infant and its Error and Judgment was reversed Cr. Jac. 274. Holbrook and Doyle's Case C. Infant appeared be Attorney One of the Defendants at the time of the Judgment was within Age and appeared by Attorney where it ought to have been by his Guardian the Judgment being upon Verdict Per Cur. Its Error and in regard Damages and Costs are intire the Judgment shall be reversed for both by the Stat. 21 Jac. 13. Judgment shall not be Arrested for that the Plaintiff in any Ejectione Firme or in any personal Action being under Age did appear by Attorney and the Verdict did pass for him Judgment was reverst in Error of a Judgment in C. B. Not severing and intire Damages in not severing for what part by number of Acres by Special Verdict and giving entire Damages to the Plaintiff 2 Keb. 250. Mâ—â—kworth and Thomasin Ejectione Firme was against Baron and Feme Versus Baron and Feme quod capiantur tho' the Baron be found Not guilty On Not guilty pleaded the Feme was found guilty and the Baron Not guilty and the Judgment was against Baron and Feme quod capiantur This was assigned for Error but the Plaintiff had Judgment for so are all the Presidents But in the Writ it was vi armis Vi armis left out in the Declaration and in the Declaration vi armis was left out and for this cause Judgment was reversed Cro. Car. 406. Mayo's Case In Ejectione Firme Writ of Enquiry of Damages without saying Quod capiatur if Judgment be given upon Demur or by Default or on Non sum informat for the Plaintiff to recover the Term but it 's awarded that there shall be a Writ of Enquiry of Damages without saying Quod capiatur this is erroneous for it may be he will never enquire of the Damages and make Retorn of it and then the Fine due upon the Capiatur will be lost 1 Rolls Abr. 769. Note On Not guilty pleaded Issue is joyned and a Special Verdict found and upon this Verdict Judgment given against the Plaintiff and after the Plaintiff brings a Writ of Error Plaintiff brings a Writ of Error and the Judgment is reversed What Judgment he shall have and in this the Judgment is reversed the Plaintiff shall have Judgment to recover his Term his Declaration being good and the Law being for him on the Special Verdict For the Court which reverseth the first Judgment ought to give the same Judgment which was given in the first Suit 1 Rolls Abr. 774. Omalcowr and Eyres Note also If before Judgment the Years of the Lease expire the Plaintiff had Judgment to recover Damages Before Judgment the Lease expires the Plaintiff shall have Judgment for Damages otherwise in Actions where Freehold is to be recovered Savile 28. In what Cases Judgments shall be amended The Jury find the Defendant guilty of Ten Acres Twenty Acres entred for ten Acres and the Judgment was entred of Twenty Acres the Judgment was amended Winch. p. 8. If on Non culp ' pleaded a Verdict is for the Plaintiff and Costs and Damages given and upon this the Judgment is Quod quer ' recuperet the Damages and Costs and not quod recuperet terminum Quod recuperet terminum left out as the use is this is the Default of the Clerk and so amendable 1 Rolls Abr. 206. Belsh and Pate The Clerk of the Entries of the Judgments had mistaken the Parcels Variance of Parcels the Jury having found several Ejectments in several Parcels they find S. had ejected him out of certain Parcels by a certain Name Amendment and T. had ejected him out of other Parcels by a certain Name and mistook that S. had ejected him out of the Parcels that T. had ejected him having the Distringas for his Direction But it was amended for the Entry was quod recuperet versus S. unum Messuagium c. which was the Ejectment made by T. and so vice versa whereas the Court's Judgment was quod Judicium intretur pro Quer ' In Ejectione Firme of one Messuage two Cottages and certain Lands and the Jury find the Defendant guilty of the Moiety of a Messuage and Lands and Not guilty of the two Cottages and of the other Moiety of the Messuage and Lands and Judgment is quod Quer ' recuperet Terminum suum praedict ' de medietate tenementorum praedictorum eat inde sine die for the residue and this Judgment altho' it may be intended that Judgment is given for the Moiety of the two Cottages Default of the Clerk
in Fine and Nonclaim the Fine must be shewed with Proclamations under Seal ibid. Copy of a Recovery given in Evidence ibid. Inspeximus how far it is Evidence ibid. Transcript of a Record or Inrolment of a Deed may be given in Evidence and how 154 Evidence as to Matters of Fait 157 Who to shew the Original Deed in Evidence 155 Where a Deed shall be proved by Testimony without shewing it 156 A Deed cancelled by Practice may be shewed in Evidence ibid. Copies where Deeds are burnt good Evidence ibid. Copy out of a Leiger-book no Evidence 152 Copy of a Counterpart allowed to be Evidence ibid. Thô Seals be broken off yet a Deed may be given in Evidence ibid. Where Copies of Court-Rolls may be given in Evidence ibid. A Will under which a Title of Land is made must be shewed it self 158 Where Bills Answers Depositions shall be good Evidence 159 Where Copy of a Bill shall be read in Evidence 159 160 Where an Answer in Chancery shall be good Evidence or not Where and in what Cases Depositions shall be read at a Tryal or not 162 Exemplification of Depositions if Evidence ibid. Decree or Decretal Order where allowed to be Evidence 164 Pedigree where allowed to be Evidence or not what Matter may or must be pleaded and what Matter may or must be given in Evidence 165 Condition to defeat a Freehold found by Jury ibid. What Evidence the Jury shall have with them after Evidence given 166 What shall be good Evidence to make a Title 167 Evidence as to an Appropriation 168 VVhere constant enjoyment is good Evidence ibid. VVhat is good Evidence to prove Lands parcel of a Priory or not 170 VVhat Evidence shall be said to maintain the Issue ibid. Estoppels found by Jury and how 165 A Man ousts the Executors of his Lessee â—r years what Remedy EXECUTION Execution in Ejectment 230 How Execution shall be where there are two Defendants one confesseth and the other is found Not guilty Execution on Recovery by Baron in Ejectment of the Wife's Term 239 If a Man recover in Ejectment against J. S. who after dies he must sue Execution against his Heir for by intendment J. S. his Ancestor was a Disseisor ibid. Extent of a Rectory on Elegit 169 Remedy against undue Extent on Elegit by Ejectment 19 Exemplification of a Verdict 175 ERROR Of what Error the Court shall take Conisance without Certificate 257 Variance between the Writ and Declaration ibid. Variance between the Record and the Writ of Error 258 Nonage in Issue upon Error where to be tried ibid. Amendment of the Judgment before a Certiorari awarded in Error 262 Release of Errors from one of the Plaintiffs in the Writ of Error shall only bar him that released it and why ib. Outlawry of one of the Defendants pleaded in Error 263 Error without Bail a Supersedeas ibid. Release by casual Ejector a Fraud 265 266 Error in Ireland 268 G. Difference between a Guardian and Prochein Amy 30 H. Habere fac ' possessionem how to be executed 242 How the Sheriff is to esteem the Acres 243 VVhere Delivery of one Messuage by the Sheriff in the name of all is good or not ibid. How the Sheriff is to give Possession of a Rent or Common ibid. Hab. fac possessionem is good without Retorn 244 How awarded into Ireland ibid. In what Cases and when a new Hab. fac possessionem may be awarded 244 245 Not to be granted after a Year without Motion 248 Of Misdemeanor in giving Possession 249 I. Inspeximus how an Evidence or not in Ejectment 153 INTENDMENT Reversion shall be intended to continue 190 Where a Lease shall be intended to be in being 191 VVhere a Dying seised shall be intended 192 Incertainty in Special Verdict Vid. Verdict Writ of Inquiry in Ejectment and the Entry 224 Stranger may enter notwithstanding Judgment in Intrusion â—7 Judgment in Intrusion what ibid. Ejectment by Joyntenant 75 Of Issue in Ejectment 139 JUDGMENT Judgment against ones own Ejector when to be entred 240 No Judgment against the casual Ejector but by Motion 104 No Judgment upon Nihil dicit but upon Motion 239 In what Cases and for what Causes Judgments in Ejectment are erroneous 233 Judgment was reverst for not severing by number of Acres and yet entire Damages 234 Plaintiff brings a Writ of Error and Judgment is reversed what Judgment he shall have 235 In what Cases Judgments shall be amended 236 After Judgment the Court of Equity would not relieve in case of a Mortgage 239 Writ of Error lies upon the Judgment by Nihil dicit before the Retorn of the Writ of Inquiry and why Chap. Judgment The Form of entring Judgments in Ejectment 227 How the Entry is when part is pro Quer ' and part against him ibid. Judgment against several Ejectors 228 The Plaintiff shall be in Misericordia but once 229 One of the Plaintiffs died during a Curia advisare vult it shall not stay the Judgment 230 Suggestion to be entred on the Roll one Defendant being dead after Nonsuit 231 After Verdict and before Judgment the Plaintiff dies and Judgment given for him the same Term 232 Of pleading to the Jurisdiction 113 JURY Another Person sworn on the Jury who was not retorned no Error lies because an Estoppel 136 What Evidence the Jury shall have with em after Evidence given 166 Jury find the Interest of the Land came to the Lessor but shew not how 193 K. Lessee of the King may bring Ejectione Firme tho' the King be not put out of the Freehold 20 L. Of the Ejectment Lease 46 The Defendant not to confess Lease Entry and Ouster for any more than is in his Possession 39 In what Cases the Court will give leave to return the General Confession of Lease Entry and Ouster 40 Of the Defendants refusal to confess Lease Entry and Ouster and the consequence 40 41 Where the Confession of Lease Entry and Ouster shall supply an actual Entry or not 42 43 The Term in the Ejectment Lease enlarged 46 After Default in Ejctment the Defendant may confess Lease Entry and Ouster Lease to Try a Title no Maintenance 47 Ejectment brought on a Lease made the â—ame Term ibid. Commencement of Leases 68 69 70 Where the Lease shall be intended to be delivered on the Day of the Demise and not of the Date 71 Lease not warranted by the Declaration 83 Why the new Rule of confessing Lease Entry and Ouster was introduced 115 Lease recited in the Release was admitted to be proved by Witnesses to the Release without shewing the Lease it self 156 What notice the Court takes of the Lessor of the Plaintiff 233 Jury find Virtute literarum patentium and find not the Letters Patents under Seal 19â— M. Ejectment of a Manor how to be brought 52 201 Manor in Reputation 196 The Defendant in Ejectment not to give in Evidence a former Mortgage made by himself 169 O. Person Outlawed may bring
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
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
Traverse is good and the Bar is naught The Defendant in his Bar ought to have made his Distinction and every Plea which goes to the Jurisdiction of the Court ought to be taken most strong against him that pleads it and the Traverse here ought to be to the Town and not to the ubi which was idle for the Law said as much and we do not imagine any Fractions of Towns Winch. p. 113. Austin and Beadle Cro. Jac. 692. mesme Case Hutton p. 74. mesme Case Note He who would demand Conisance of this Plea ought to shew his Warrant of Attorney in Latin Sid. 103. in the Bishop of Ely's Case The Attorney General in Hales and Jull's Case prayed Allowance of the Plea Cinque-Ports that the Lands in the Ejectment were within the Cinque-Ports which the Court granted there being no Imparlance General or Special both which affirm the Jurisdiction of the Court and at the Venire fac ' the Plaintiff may suggest the Lands to be within the Cinque-Ports and have it of Places adjacent within the County 1 Keb. 65 Sir Edward Turner in Ejectment 〈◊〉 Conisance not allowable on Suggestion but it must be averred on Record ore tenus shewing his Warrant of Attorney demanded Conisance for the Bishop of Ely per Cur ' it's not allowable on Suggestion which is Cinque-Ports Ancient Demesne c. It must be averred on Record for tho' the Court takes notice that Ely is a Royal Franchise yet this must be so averred or pleaded and may be after Imparlance It must be averred or pleaded and may be after Imparlance in Ejectment when any third Person is concerned since the new way of Ejectment used in Green and Simpson's Case but Siderfin is contra that it cannot be pleaded after Imparlance 1 Keb. 946. 948. Sid. 103. The Defendant prayed to be admitted to plead in Abatement Where Conisance of Plea not allowed of in Ejectment that the Lands in the Ejectment are within the Cinque-Ports and the rather for that he was made Defendant by the Rule of Court with a special Imparparlance with a salvis omnibus c. Per Cur ' let him plead in Chief unless in Ancient Demesne no special Plea has been allowed because the Lord would be prejudiced in a Trial at Common Law 1 Keb. 725. Hale and Uppington In Hall and Hugh's Case in Ejectment of Lands Part within and part without the Cinque-Ports and demur part within and part without the five Ports the Defendant after Imparlance pleads in Abatement That part of the Lands are in the Five Ports and so prays Judgment si Curia cognoscere velit c. The Plaintiff demurs because it does not appear but that the Demise was out and it 's transitory and may be laid any where tho' the Lease was actually sealed in another Place or County and the Defendant may plead Non dimisit Where Non dimisit pleadeded in Ejectment as well as Not guilty The Demise in this Case was laid at Maidstone per Twisden this being an inferiour Court they cannot try the Demise which is issuable Why the new Rule of confessing Lease was introduced and the great Mischief that came in want of Proof of the Demise was the cause of introducing the new Rule In this Plea it was said That the Lands were in F. parcel of the Cinque-Ports where time out of mind the Writ of our Lord the King runs not and that they of F. have always tried c. this is ill Prescription must be to the five Ports and not to F. only for the Prescription should have been annexed to the Five Ports generally and not to F. only and the Court ordered him to plead in Chief and to confess Lease Entry and Ouster or else that the Plaintiff take Judgment against his own Ejector 2 Keb. 69 79. 1. Whether Ancient Demesne pleaded be a good Plea 2. Whether it may be pleaded after Imparlance In Cro. Car. 9. it was a Question Whether Ancient Demesne may be pleaded after Imparlance Ancient Demesne a good Plea in Ejectment and why It 's resolved That Ancient Demesne is a good Plea in Ejectione Firme and in Replevin tho' it was doubted in our Books formerly but that is fully setled in several Reports In Alden's Case 5 Rep. the Defendant pleads That the Tenements in which c. were parcel of the Manor of O. in Com. S. Quod quidem manerium est de antiquo Dominico c. and demands Judgment si Curia hic vult cognoscere c. The Plaintiff demurs and per Cur ' it is a good Plea 1. Because it 's the common Intendment that the Right and Title of the Land will come in Debate in this Action 2. In this Action the Plaintiff shall recover the Possession of the Land and have Execution by habere fac ' possessionem and this Action savours of the Realty So in Pymmock and Feilder's Case where the Pleading was nice the Defendant pleads that the Lands were Ancient Demesne and pleadable by a Writ of Right Close c. The Plaintiff shews that they were Copyhold Lands Parcel of the Manor and entitles himself by Lease under the Copyholder and traverseth That they were impleadable by a Writ of Right Close and it was thereupon demurred 1. Because Copyhold-Land parcel of a Manor of Ancient Demesne should be pleadable there and not at Common Law 2. Because this Traverse that they were impleadable is but the Consequence of Ancient Demesne Per Cur ' the Copyhold-Lands are as the Demesnes of the Manor and are the Lord 's Freehold and therefore not impleadable but in the Lord's Court and the Traverse is well enough taken 1 Bulstr 108. Cr. El. 826. 5 Rep. 105. Alden's Case Stiles 90. Cro. Jac. 559. Pymmock and Feilder Now a Lease for years is intended to be taken real in a Recovery and because a Lease for years intended to be recovered in Ejectione Firme it is a good Plea to say it is Ancient Demesne yet a Lease for years is but personal in Quality 2 Rolls Rep. 181. Banister and Eyres The Defendant imparles in Ejectione Firme Whether Ancient Demesne is pleadable after Impalance and after pleads that the Land is Ancient Demesne c. unde intendit quod Curia non vuit cognoscere c. The Plaintiff demurs Per Cur ' this Plea is pleadable after Imparlance because if Judgment be given here the Lord will reverâ—e it by Disceit and the Judgment will be avoidable and the diversity is true Regula A Man may plead that which is in Bar after an Imparlance but not that which goes to the Writ and this holds in all Cases but Ancient Demesne 2. The last Conclusion is Surplusage Conclusion of Plea but if he had begun his his Plea Actio non it had been ill notwithstanding the Conclusion ut supra But the Defendant waved his Demurrer without Costs and pleaded to Issue if Frank-fee
or not And yet Hetley saith p. 117. It was agreed by all that Ancient Demesne is a good Plea in Ejectment but not after Imparlance Marsham and Allen's Cas Dyer 210. in margine But now if a Man come in and pray to be made Defendant and to plead specially Ancient Demesne he shall do it and it 's now used of Course to plead Dilatories after Imparlance New Defendant not to plead Ancient Demesne after the former Imparlance 1 Keb. 361. Holiday's Case But in 1 Keb. 706. by Windham the new Defendant one that prays to be made so may plead Ancient Demesne after the former Imparlance because it 's not any Ouster of the Court of Jurisdiction Cur ' e contra He ought to plead Not guilty personally Roch and Plumpton's Case And in 1 Keb. 755. Plea of Ancient Demesne allowed the same Term Snow and Cooley The Court will allow Plea of Ancient Demesne the same Term contrary to the ordinary Rules in Ejectment And in Sutton and Courtney's Case it was prayed by Council That the Defendant might have Liberty to plead Ancient Demesne to a Declaration delivered before the Essoyn of this Term And how as of last Term which the Court granted and ordered him to attend the Scondary to settle the said Plea which is usually done by making the Plaintiff deliver a new Declaration as of this Term and so the Plea cometh quasi before Imparlance 2 Keb. 725. In David and Lyster's Case Rolls said Ancient Demesne is a good Plea after Imparlance for it goes in Bar of the Action it self and not in Abatement of the Writ Stiles 90. Plea puis darrein Continuance Ejectione Firme was brought for entring into three several Vills Release puis darrein Continuance before the Justices of Nisi prius they can not take it The Declaration makes mention of no Vill in certain The Defendant pleads a Release puis darrein Continuance before the Justices of Nisi prius Per Cur ' a Man cannot plead a Release at the Nisi prius after Issue joyned for so none should have Judgment When this Plea is pleaded the Justices of Nisi prius cannot proceed to take the Inquest and to this Plea of the Defendant the Plaintiff cannot there reply but he ought to reply in Bank After Issue joyned and a Venire fac ' awarded in such a Vill the Sheriff returns null tiâ—l Vill this is not good for he cannot return that thing which is contrary to the Issue to avoid the Trial à fortior ' one of the Parties cannot plead such matter at the Nisi prius the Authority of the Justices of the Nisi prius is to take the Verdict of the Jury and no other Plea And the Justices of the Nisi prius have no power to amend any Fault in the Declaration and when the Sessions end their Authority ceaseth Vid. Cro. Jac. 261. contra 10 H. 7. 21. 1 Bustr 92. Moor and Brown Yelv. p. 180. 1 Cro. Jac. 261. In Ejectione Firme against two one appears and pleads the General Issue and Process continues against the other who now appears and pleads Entry puis darrein Continuance in Abatement of the Writ Upon which the Plaintiff demurs and after Issue was found for the Plaintiff Demurrer a Confession of the Entry he shall not have Judgment for the Demurrer is a Confession of the Entry and shall abate his own Writ for in this Action the Term is to be recovered aliter if he had imparled Vide supra Plea in Abatement Dyer 226. Upon a Special Verdict in Ejectment Release pleaded at the day of the Argument and a day given for Argument before which the Defendant procures a Release of all Ejectments and at the day for the Argument pleaded the Release puis darrein Continuance and good aliter of a Release between the Nisi prius and Day in Bank because there he had no day in Court nor has he any Remedy but by Audita Querela if the Plaintiff sued Execution 2 Rolls Abr. 467. Wykes and Bunbury Cr. Jac. 646. Stamp and Parker Ejectment was brought of Lands in K. and two other Villages Entry puis dar ' Cont ' pleaded at the Nisi prius the Plea is receiveable The Defendant pleads Not guilty and at the Nisi prius pleaded That the Plaintiff puis le darrein Continuance entred into a Close parcel ' praemissorum and him expelled and a Demurrer upon it because he declared not in which of the Villages the Close lay Per Cur ' this Plea is receivable for it is matter in fait and peremptory to him who pleads it for as a Release or matter in Bar may be pleaded so may this and is receivable at the Discretion of the Justices if they perceive any Verity therein So is Rolls Abr. 630. Moor and Hawkins Cr. Jac. 261. Yelv. 180. Moor and Hawkins 1 Brownl 145. In Ejectione Firme the Defendant may plead at the Assises before the Justices of Nisi prius That the Plaintiff had entred into parcel of the Land mentioned in the Declaration puis darrein Continuance the Justices of Nisi prius may accept the Plea and dismiss the Jury and tho' they do not give any day to the Parties in Banco yet this is not any Discontinuance altho' that the Plea be collateral for the day of Nisi prius and day in Bank are one day For the Court in Bank gives day to the Jurors in Bank Nisi prius Justiciarii ad Assissas venerint and to the Parties day is given there absolutely 2 Rolls Abr. 630. Moor and Hawkins 1 Rolls Abr. 485. Sir Hugh Brown's Case In Ejectione Firme By this Plea the first Issue of Not guilty is discharged after pleading Not guilty a Release is pleaded puis darrein Continuance whereby the first Issue is discharged which the Court granted And tho' the Justices cannot try it at Nisi prius unless they think it but Colour and insufficient yet if he think it sufficient he must sign a Bill of Exceptions for the Trial is Error and so Yelv. Bill of Exception 181. And in this Case the Release of the Lessor of the Plaintiff is but Colour Also the Party cannot demur to such Plea also the Agreement to try and stand to the Title only is no Cause to over-rule such Plea and per Cur ' the Plea certified hither was allowed notwithstanding such Agreement being gained after 3 Keb. 67. Mich. 24. Car. 2. Carter and Haggard Accord and Satisfaction a good Plea in Ejectment H. P. brought Ejectione Firme against R. C. and A. his Wife and A. D. for an House in G. in c. upon Demise made by A. H. the 7th of April 8 Jac. for five years and that the Defendant the 10 of April in the same year ejected him c. The Defendant pleads That after the Trespass and Ejectment viz. primo Maij Anno octavo supradicto apud G. praedict ' talis inter R. C. praefat ' H. P. tam
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
or uncertainty in reference to Acres Parishes Vills Place Of Verdict 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 Of the Juries finding parcel Where Verdict shall be good for part and void for the residue The time of the Entry of the Plaitiff's 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 Verdict may be amended A General Verdict IF at a Tryal at Bar there be matter in Law and the Judges agreeto it and so the Jury do not find it Specially but give a General Verdict The Judgment shall be according to the Verdict and cannot be staied 1 Bulstr 118. Platt and Sleep Ejectment of seven Messuages sive Tenementis is ill after a General Verdict and its ill on Demurrer but this might have been helped by taking Verdict of either So it is where Ejectment is de Messuagio Tenemento its ill after a General Verdict 2 Keb. 80. 82. Burbury and Yeoman in this Case the Verdict was general for the Plaintiff for the Messuages and non culp for the Tenements it seems it had been good But Hales Chief Baron refused to allow of such finding in the Home Circuit And it was said by the Court as this Case is The Plaintiff may not Aid himself per releasing of part as perhaps he might had there been Lands also in the Declaration 295 Mesme Case But first Council to subscribe the Points in Question Special Verdict I shall set down two or three things observable as Rules or Directions of the Court in reference to Special Verdicts It was made a Rule of Court That in finding of Special Verdicts where the Points are single and not complicated and no Special Conclusions the Council if required shall subscribe the Points in Question and agree to amend the omissions or mistakes in the mean Conveyances according to the truth to bring the Points in Question to Judgment It was likewise Order'd in Roll's time Of finding Deeds in haec â—â—erba That the unnecessary finding of Deeds in haec verba upon Special Verdicts where the Question rests not upon them but are only derivative of Title shall be spared and found briefly according to the substance they bear in reference to the Deed be it Feoffment Lease Grant c. Note Attachment against the Defendant because he would not bring in his Evidences In 2 Rolls Rep. 331. An Attachment was awarded against the Defendants because they would not bring in their Evidence for to have a Special Verdict in Ejectione Firme and this by the course of the Court because there is no other remedy As to the Rules of Special Verdict Estoppels Estoppels found by the Jury which bind the Interest of the Interest of the Land as the taking 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 for the Estoppels regularly must be pleeded and relied upon by apt Conclusion and the Jury is Sworn ad veritatem dicendam yet when they find veritatem factis they persue well their Oath and the Court ought to judge according to Law So may the Jury find a Warranty being given in Evidence tho' it be not pleaded 10 Rep. 97. vide supra tit Evidence And if the Jury find the truth the Court shall adjudge it to be a void Lease vid. Cr. Eliz. 140. Sutton and Rawlin's Case In Ejectment Priority of Possession where a good Title if it appear by the Record of a Special Verdict that the Plaintiff had Priority of Possession and no Title be proved for the Defendant the Plaintiff shall have Judgment as in Coryton's Case J. Hiblin was seised in Fee of the Lands in Question and by his last Will deviseth unto A. H. Lessor of the Plaintiff if my Son T. H. happen to have no Issue-male after the Death of my Wife and if he have Issue-male then 5 l. to be paid to A. H. The Devisor died seised leaving Issue Thomas who had R. Issue-male Ann the Wife of the Devisor survives him and after dies and they find that A. and Eliz. were Sisters and Coheirs of the said R. the Issue-male who died without Issue And they found the Entry of the Lessor of the Plaintiff and the Lease to the Plaintiff prout in the Declaration and that the Defendant as Guardian to A. and Eliz. ousted him The Points in Law in this case were not argued because it appears by the Record That the Lessor had Priority of Possession and there is not any Title found for the Defendant For tho it be found that A. and E. were Coheirs to the Issue-male that is to no purpose because it was not found that they were Heirs of the Devisor and the Estate-Tail admitting it were so appears to be spent by the Death of Thomas Hiblin without Heir-male and so they had no Title and then the Priority of Possession only gives a good Title to the Lessor of the Plaintiff against the Defendant and all the World besides but only against the Heir of the Devisor 2 Sanders 112. Allen and Rivington In Bateman and Allen's Case there was Special Verdict in Ejectment sed utrum the Entry of the Defendant upon the matter be lawful or not they pray Advice And if the Entry were lawful they find for the Defendant if not c. Now forasmuch as in all the Verdict it is not found that the Defendant had the primer Possession nor that he entred in the Right or by the Command of any who had Title but it is found he entred upon the Possession of the Plaintiff without any Title his Entry is not lawful and the Plaintiff had good Cause of Action against him wherefore the Plaintiff shall recover and so held all the Court wherefore they would not hear any Argument as to matter of Law But if the Conclusion of the Verdict had been si c. whether the Entry of Hill and his Wife were lawful or not then the Judgment should have been upon Matter in Law for that it should be intended that the Defendant had Title iâ— the Lessor of the Plaintiff had no Title 〈◊〉 and that the Plaintiff had not Cause of Action but now not Craw and Ramsey Viâ— infra Cro. El. 437. Bateman and Allen. Plâ— Nervis Scholastica Special Verdict finds W. B. seised and devised the Reversion of all Messuages except in D. to the Heirs of the Devisor anâ— that Tho. B. was Brother and Heir and enâ—tred and leased to the Plaintiff till the Dâ—â—fendant ejected him and have found no Tâ—â—tle for the Defendant now being there is 〈◊〉 Title found for the Defendant nor of what Land this Ejectment was viz. That it was not of that devised
Williams Verdict finds The Averment of the Estate Tail to be found that the Lessor of the Plaintiff was seised in Tail of the Rectory c. and does not shew the beginning of the Estate Tail which is the particular Estate Per Cur. It is an apparent fault Cr. Eliz. 407. Baker and Searle In the said Case where the Party comes in by a Limitation of an Use Where when the party comes in by Limitation of Use it must say vigore stat the Verdict saith virtute cujus dimissionis and it ought to have been virtute Statut. Per Cur. This is an apparent fault in Substance and Form The Issue in Ejectment was if Julian the Wife of the Defendant was alive at such a time Diversity of names and the Jury found that Jenimet the Wife of the Defendant was alive at such a time Per Cur. They shall not be adjudged one and the same Person without finding also by the Custom of the Country that Women baptised by the name of Julian have beenalso called Jenimet Moor 411. No. 560. Huntbach and Shepard Verdict as to Baron and Feme In Ejectione Firme against Baron and Feme On Not guilty pleaded and a Venire fac ' granted the Jury found the Wife Note guilty and found a Special Verdict as to the Husband Wife sound Not guilty and Special Verdict as to the Husband which Special Verdict is afterwards adjudged insufficient by the Court. A Venire fac ' de novo shall be awarded for both as well for 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 2 Rolls Abr. 722. Langly and Pain Venire de novo So in Swan's Case Stiles 412. Ejectment against Baron and Feme and the Feme is found Ejector by the Verdict and nothing is found concerning the Husband and a Venire fac ' de novo was awarded unless they will agree to amend the Verdict according to the Notes Where and in what Cafes Special Verdicts may be amended Where a Special Verdict is not entred according to the Notes Record of a Special Verdict amended the Record may be amended and made agree with the Notes at any time tho' it be 3 or 4 Terms after it is entred 4 Rep. 52. 8 Rep. 162. Cr. Car. 145. And where a Verdict is certainly given at the Tryal and uncertainly returned by the Clerk of the Assizes Postea where amended c. the postea may be amended upon the Judges certifying the truth how the Verdict was given Cr. Car. 338. The Plaintiff was Non-suited at the Assizes Non-suit â—oâ— default of Warrant to try the Cause not Recorded for default of the Warrant of the Justices to try the Cause viz. for not confessing Lease Entry and Ouster and prayed that the Non-suit might not be Recorded which the Court granted and an Alias Distringas 1 Keb. 508. Pits and Viner Cro. Car. 203. Aquila Wicke's Case If the Plaintiff makes Title upon a Demise made by Tho. Bill and Agnes his Wife and the Parties are at Issue and the Record of Nisi prius was entred by the Clerk that the said Tho. Bill and Anne his Wife made the Demise Record of Nisi prius variance from the Roll not amendable c. so that the Record of Nisi prius differs from the Roll this shall not be amended for if the Record should be amended the Jury should be attaint in as much as they found a Lease made by Tho. Bill and Agnes his Wife and peradventure this Lease will not prove a Lease by Tho. Bill and Anne his Wife 1 Rolls Abr. 202. King and King CHAP. XIII Where the Defendant shall have Costs and Damages How the Plaintiff may aid himself by Release of Damage Executor not to pay Costs Lessor of the Plaintiff to pay Cost Where Tenant in Possession liable to pay Costs or not Feme to pay Costs on Death of her Husband Infant Lessor to pay Costs of the Writ of Enquiry The Entry Writ of Error Lies upon the Judgment before the Writ of Enquiry and why Writ of Enquiry how abated The Jury are to find Costs and Damages in Debt Trespass Ejectment c IF the Plaintiff mistake his Declaration Regular the Defendant shall have Costs The Plaintiff may relinquish his Damages where part of the Action fails and take Judgment for the other Release of Damages And so is the Rule If part of the things Demanded in this Action are well demanded and part of the things demanded are not well demanded and Verdict is given for the Plaintiff for the whole and entire Damages are given The Plaintiff may release all the Damages in that which is not demanded and pray Judgment for the Residue and this shall aid Error if Judgment be given accordingly As in Ejectione Firme of a Messuage Cottage and Tenement if it be found for the Plaintiff and entire Damages given for the whole because Ejectione Firme does not lie of a Tenement the Plaintiff may release all the Damages because it is entire and have Judgment for all the Land saving the Tenement and this shall not be Erroneous So in Ejectment of Land and de libertate Pischarie for libera Pischaria which is not good the Plaintiff may Release all the Damages and have Judgment for the Land only altho' he cannot be said properly to Release Damages as to the Pischary where none were Godb. pag. 354. No. 439. 1 Rolls Abr. 786. Clive and Vere 1 Rolls Abr. 784 786. Retorick and Chappel Ejectment was for Entry into a Messuage sive tenementum and 4 Acres of Land to the same belonging As to the Messuage sive tenementum The Declaration is uncertain and if the Damages are Released Warranty the Costs are gone also It is uncertain to which the 4 Acres belong i. e. to the Messuage or Tenement But per Cur. as to the 4 Acres its certain enough and the words to the same belonging are merely void 3 Leon. p. 228. Wood and Pain In Ejectment Judgment is against the Defendant who dies Executors not to pay Costs and his Executor brings a Writ of Error and is Non-suited He shall not pay Costs an Executor is not within the Statute for paying of Costs Occasione dilationis Mod. Rep. 77. In Ejectment against 2. A. B. they prayed to be made Defendants and were so confessing Lease Entry and Ouster and at the Tryal A. confessed so much as was in his Possession for certain but B. would not proceed with him and the Plaintiff was Non-suit against both He that tried it prayed Costs which the Court granted but they must joyn in the Suit of Execution for Costs 2 Keb. 219. Sir Cyril Wych's Case The Lessor of the Plaintiff in Ejectment shall be liable to Costs Feme liable to pay Costs on Baron Death the Lease being made
upon a Judgment in Banco in Ejectione Firme Of what Error the Court shall not take Conisance sans Certificate is certified a brief Entry of the Writ according to the Course there and then the Declaration at large and by the Recital of the Writ which mentions that the Action is brought de Rectoria de D. viginti Acris terrae duodecim Acris prati cum pertinentiis in D. And the Declaration is of a Lease by Indenture of the said Rectory and Tenements cum pertinentiis excepta terra pro mensa Vicarij ibidem cum omnibus talibus easiamentis quales Vicarius adtunc habuit cum omnibus talibus decimis c. And upon Not guilty a Verdict and Judgment was for the Plaintiff and assigned now for Error That Judgment was given pro Querente whereas it ought to to be for the Defendant And after in nullo est erratum pleaded it was moved for Error That it appears by the Record certified that the Writ is general of a Rectory and the Declaration is of a Rectory with certain Exceptions Variance between the Writ and Declaration In this Case the Court ought to reverse the Judgment for this Cause in as much as this is not assigned for Error nor the Writ it self certified so that the Court may not take notice that the Writ is as the Entry of it is certified and this Exception is but a Variance between the Writ and the Declaration and perhaps this Exception in the Declaration was but ex abundantia Declaration with an Exception and pleading in such Case and is not parcel of the Rectory and then he ought not to have demanded the Rectory with an Exception And it seems it had not been a good Plea for the Defendant in the first Action to say that it appears by the Declaration that there is an Exception c. without Averment in Fact that it is parcel of the Rectory Pas 11 Car. B. R. Gregory and Shepard on a Lease made by the Dean and Chapter of Peterborough Error upon a Recovery in Ejectment out of the Court of Durham The Error assigned was the Infancy of the Plaintiff in the Ejectment who appeared by Attorney where he ought to have appeared by his Guardian and upon Issue joyned on the Infancy it was found for the Plaintiff in the Writ of Error But this Writ of Error was not sufficient to the Court to proceed to the Reversal Variance between the Record and the Writ of Error 1. Because the Writ of Error is directed to the Bishop of Durham and others by Name to remove a Record of Ejectment between such and such which was coram the said Bishop and seven others by Name and the Record removed seems to be a Record of Ejectment before the Bishop and eight others so it is not the same Record specified in the Writ for a Record before eight and a Record before seven cannot be intended the same Record 2. This Writ of Error is directed to the Bishop of Durham and six others by Name and the Retorn of the Writ viz. Respons ' of the Commissioners is by the Bishop and five others only without making mention of the sixth Commissioner Yelv. p. 211. Ode and Moreton 2 Rolls Abr. 604. In Ejectment Verdict was given pro Quer ' quoad ill ' parcel ' Messuagij praedict ' jacen ' proxim ' ad Messuag ' modo F. N. continen ' ex Boreal ' parte c. quoad resid ' pro Def. and the Judgment was quod Quer ' recuperet terminum suum praedict ' de C. in praedict ' parcel ' praedicti Messuagij jacen ' proxim ' ad praedict ' Messuag ' ut praefertur in occupatione praedicta F. N. continen ' whether this Variance between the Verdict and Judgment be Error Adjournat ' Qu. if it be not a Jeosayl deins Art Stat. 16 17 Car ' 2. c. 8. Raym. p. 398. Norris and Bayfeild Ejectione Firme against two Death of one Defendant dying after Issue pleaded and before Verdict if after Issue joyned and Venire fac ' awarded one of the Defendants dies and after a Verdict is given at the Nisi prius for the Plaintiff and after before Judgment the Plaintiff â—â—rmiseth the Death of the one ut supra and prays Judgment against the other and Judgment given accordingly without any Answer to it by the Plaintiff if it be not true that he is dead as was surmised this may be assigned for Error for in as much as the Plaintiff had made this Surmise it being a matter of Fact and the Plaintiff might not have any Answer to it the use not being to enter â—up this that the Plaintiff does not deny it the Plaintiff had no other Remedy but to assign this for Error But this is reported otherwise p. 767. 1 Rolls Abr. 756. Tiffin and Lenton If A. bring Ejectione Firme against B. and C. and after Issue joyned B. dies and after upon the Hab. Corpora which mentions the Issue to be between A. of the one part and the said B. and C. a Verdict is given against B. and C. that they are guilty and Damages against them but a Surmise is made of this before Judgment and so Judgment given only against C. this is not erroneous altho' the Verdict was against both in as much as the Judgment was only against him who was in life 1 Rolls Abr. 767. Tiffin and Lenton If A. Nonage in Issue upon Error where to be tried recover against B. in Ejectione Firme in D. upon which B. brought a Writ of Error in B. R. at Westminster and discontinues it and after there brought a new Writ of Error quod coram vobis residet and assigns for Error That the said A. at the time of the Tryal of the first Action was commorans and within Age at Westminster in Middlesex and that he sued in the said Action by Attorney and upon the Nonage the Parties are at Issue this shall be tried in Westminster and not in D. where the Land lies because the Ejectione Firme is not any real Action and in as much as it is specially alledged that he was within Age and commorans at VVestminster when the Writ of Error was brought 2 Rolls Abr. p. 604. Orde and Moreton Error of a Judgment in Ireland in Ejectment was assigned Deins Age. that the Plaintiff then Defendant was per Attornat ' and within Age Judgment was reversed notwithstanding 17 Car. 2. c. 8. vide 3 Keb. 384. D. of Albermarl and Keneday In Ejectment one of the Defendants pleaded Not guilty and Verdict for the Plaintiff against both and Judgment accordant Error was brought because in the Venire Constantinus Callard was retorned and so named in the Distringas 〈◊〉 by Release but in the Pannel annexed thereto Constantius Callard was retorned and sworn and so was retorned by that name on the back of the Postea this was held manifest Error for they be distinct