the new Practice upon Not guilty pleaded the Title is only to be insisted on at the Trial yet in some Cases special Pleas may and ought to be pleaded in Ejectione Firme especially in inferiour Courts which I shall first treat of and then give a little touch as to the special Pleading formerly in use in this Action that so the Reader may not be totally ignorant thereof But first What shall be a good Plea in Abatement Per Cur ' That the Plaintiff had another Ejectment depending It is a good Plea in Abatement of Ejectione Firme in B. R. that the Plaintiff had another Ejectment for the same depending in the Common Bench Moor p. 539. Digby and Vernon In Ejectione Firme Action commenced and the Term expires pendant the Suit if the Term be expired before the Action brought the Writ shall abate because he ought to recover the Term and Damages but if he commence the Action before the Term expire and it expires pendent the Writ there it shall not abate but he shall recover Damages Dyer 226. Entry of the Plaintiff hanging the Writ Entry of the Plaintiff hanging the Writ shall abate the Writ In Williams and Ashet's Case the Defendant would have pleaded Entry after the Verdict in Abatement of the Writ Entry after the Verdict and before the day in Bank is not Error but it was hold clearly he had not day to plead it but it is put to his Audita Querela But in Parkes and Johnson's Case in Ejectione Firme the Error assigned was That the Plaintiff after Verdict and between the day of Nisi prius and the day in Banco had entred whereby his Bill was abated and demurred thereupon Per Cur ' this cannot be assigned for Error for it proves the Bill is abateable but is not abated in fait neither is it material to assign it for Error for upon such Surmise which goes only in Abatement the Judgment shall be examined Cro. El. 181. Ashet's Case Cro. El. 767. Parks and Johnson The Plaintiff declares of one Messuage and forty Acres of Land in Stone Abate because he shews not in which of the Vills the Lands lie The Defendant imparles till another Term and then pleads That within the Parish of Stone are three Vills A. B. and C. and because the Plaintiff does not shew in which of the Vills the Lands lie he demands Judgment of the Bill quod ob causam praedict ' Billa praedicta cassetur The Plaintiff demurs and adjudged for him After Imparlance no Pleading in Abatement and why For 1. after Imparlance the Defendant may not plead in Abatement of the Bill for he had accepted it to be good by his Entry into defence and by his Imparlance 2. Reg. Where a Man pleads in Abatement he ought to give to the Plaintiff a better Writ The matter of the Plea is not good because the Defendant does not shew in which of the Vills the Messuage and forty Acres lie And where a Man pleads in Abatement he ought to give the Plaintiff a better Writ and upon Demurrer there shall be a Respondeas Ouster Yelv. 112. Tomson and Collier After Verdict for the Plaintiff the Question being brought against Baron and Feme that the Husband was dead since the Nisi Ejectment against Baron and Feme Baron died since the Nisi prius and before the day in Bank the Action continued against the Wife prius and before the day in Bank and whether the Bill should abate in all or should stand against the Feme was the Question and because it is in Nature of an Action of Trespass and the Feme is charged for her own Fact it was adjudged that the Action continued against the Feme and that Judgment should be entred against her sole because the Baron was dead Cro. Jac. 356. Rigley and Lee. Ejectione Firme by J. S. against N. and O. N. Where the Plaintiff by his demand confesseth the Writ abateable appears and pleads the General Issue and Process continues against the other until he appears and then he appears and pleads an Entry into the Land puis darrein Continuance Judgment de Brev ' The Plaintiff upon this Plea demurs in Law Curia advisare and in the interim the first Issue was found pro Quer ' versus N. and the Plaintiff prays his Judgment He shall not have it because the Plaintiff by Demurrer in Law had confessed the Writ abateable and the Writ by the Entry of the Plaintiff was abated in as much as the Term is to be recovered Dyer 226. Nevill's Case To the same purpose is the late Case of Boys and Norcliff In Ejectione Firme the Question was if the Entry into the Land after the day of Nisi prius and before the day in Bank may be pleaded in Abatement and if such Entry puis darrein Continuance be a Plea in Abatement Note this was in Error out of the Common Bench and held by the Court of the King's Bench that it is not Error yet entry will not revive the Term because it's only in Abatement Entry before the Nisi prius to be pleaded at the Assises and there is a Diversity between this and Death 1 Bulstr 5. And it 's usual if the Entry be before the Nisi prius to plead such a Plea at the Assises and if it be omitted the Advantage is lost but not so in case of Death By Death the Writ is actually abated Difference between Entry after Verdict and Death there being no time to plead it in Court but Entry must be pleaded puis darrein Continuance in Abatement only Sid. p. 238. Boys and Norcliff 1 Keb. 841 850. mesme Case Shall not abate by the Death of the Lessee Not abate by the Death of the Lessee Vid. 3 Keb. 772. Of pleading to the Jurisdiction Conisance of Plea how to be demanded and allowed and how pleaded This Plea was formerly allowed of and so is still in some Cases Now every Plea which goes to the Jurisdiction of the Court Regula for a Plea to the Jurisdiction of the Court. ought to be taken most strong against him that pleads it and to this purpose there is a pretty Case In Ejectment the Plaintiff declares of a Lease made at Haylsham Al' Jurisdict ' the Defendant pleads That Haylsham praedict â—ubi tenementa jacent is within the Cinque-Ports where the King 's Writ runs not Cinque-Ports and so he pleaded to the Jurisdiction of the Court The Plaintiff reply'd That the Town of Haylsham was within the County of Sussex absque hoc that it was within the Cinque-Ports The Defendant demurs Travorse because he ought to have traversed absque hoc quod Villa de Haylsham ubi tenementa jacent is within the Cinque-Port for the truth was it was part in the Cinque-Ports and part in the County of Sussex and the Land lies in the part which is in the Cinque-Ports but per Cur ' the
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
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
prius over-ruled it that this Declaration was well maintained by the Lease and the Jury gave a Verdict according to his Opinion Cro. Jac. p. 83. Jordan and Steere Upon a Lease by Tenant for life and him in Remainder A. Tenant for life Remainder to B. in fee they both by Indenture joyn in a Lease to the Plaintiff Per Cur ' this is the Lease of A. during his Life the Confirmation of B. and after the Death of A. it is the Lease of B. and the Confirmation of A. And because the Plaintiff in Ejectment had counted of a joynt-Lease by A. Verdict and B. it was adjudged against him 6 Rep. 15. Treport's Case So is the Case in Popham p. 57. upon a Demise by Dorothy Pool and Robert Smith it was thus on a Special Verdict Dorothy was Tenant for Life Remainder to Smith in Fee and they being so seised made the Lease in the Declaration Per Cur ' the Lease found per the Verdict doth not warrant the Lease alledged in the Declaration for during Dorothy's Life it 's her demise and not the demise of Smith but as his Confirmation for that time for he had nothing to do to meddle with the Land during the Life of Dorothy and after her death it shall be said to be the demise of Smith and not before Poph. 57. King and Berry By a Corporation The Plaintiff declares upon a Lease to him made by the President Fellows and Scholars of St. John's Colledge Oxon. and in the Conclusion he doth not say hic in Curia prolat ' Per Williams it is not good The Ejectment-Lease being made by a Corporation they sealed the Lease and delivered it by their Attorney having a Letter of Attorney from them to deliver the same they cannot do this in any other manner than by their Attorney 1 Bulstr. 119. Lord Norris's Case Hill 36 El. Carter and Cromwel in Ejectione Firme the Plaintiff counts per Lease made by the Warden of All-souls Colledge in Oxon. And Exception was taken because the name of Baptism of the Warden was omitted but adjudged there need not the difference is where a Corporation is sole Person as Bishop there may be his Name aliter aggregate Dyer 86. Marg. Ejectment was brought on a Demise of a Corporation not saying by Deed per Cur ' Judgment shall not be arrested for this on Judgment by cognovit Actionem at the Assises but it shall be intended after this as well as after a Verdict Upon a Lease by Commissioners of Bankrupt Commissioners of Bankrupt had assigned the Land in Question to the Lessor of the Plaintiff which Indenture was afterwards inrolled but the Declaration was of a Demise made after the Indenture and before the Inrolment and whether that Demise were sufficient to intitle the Lessor of the Plaintiff was the Question in Perry and Bowe 's Case Per Cur ' it is not sufficient Vide le case 2 Ventr 360. Perry and Bower By Copyholder If a Lease be found made by a Guardian or Copyholder such a Lease will maintain the Declaration tho' their Leases are void against the Lord and Infant Hardr. 330. Wheeler's Case Vide supra Tit. Who shall have Ejectione Firme By Administrator He ought to shew how the Archbishop granted it either as Ordinary or by his Prerogative and therefore Exception was taken to a Declaration in Ejectment because the Plaintiff conveyed his Interest by an Administrator of all the Goods of the Lessee in Sussex and Kent but shews not how the Archbishop granted it either as Ordinary or by his Prerogative Presidents not to be changed and this was held by the Court to be a material Exception But because all the Presidents in B. R. and B. C. were so in general without shewing how and because they would not change Presidents they disallowed the Exception Cro. El. p. 6. Dorrel and Collins In Gillam and Lovelace's Case it was moved in Arrest of Judgment That the Declaration brought by Administratrix was not good because the granting forth Letters of Administration was in this manner viz. Administratio commissa fuit querenti per William Lewin vicarium generalem in spiritualibus Episc Rot. without averring that at the time of the granting Letters of Administration Vicar-General the Bishop was in remotis agendis for a Bishop present in England cannot have Vicarium but per Cur ' the Vicar-General in spiritualibus amounts to a Chancellor for in the Truth a Chancellor is Vicar-General to the Bishop 2. The Declaration is not Episcop Roff. loci illius ordinarii but per Cur. all the Presidents are so and in a Declaration such Allegation needs not but by way of Barr it is necessary 3. The Plaintiff declares of Ejectment and also quod bona catalla ibid. invent cepit and in the Verdict the Damages for the Ejectment and Goods are entirely taxed Quaere de hoc 1 Leon. p. 312. Gilham and Lovelace Ejectione Firme was brought of a Lease of Tythes and shews not that it was by Deed and ruled to be ill because Tythes cannot pass without Deed Cr. Jac. 613. Swadling and Peers CHAP. VII Where in the Declaration a Life must be averred and where it need not Of Delivery of Declarations at or after the Essoyne-day Declurations when to be entred as of the same Term where the Copies need not be paid for Declarations when amendable or not Of expressing the Vills where the Lands lie Of the Pernomen Declaration need not be of more Acres than he was ejected out of Of the Forms of the Declaration Vi Armis omitted Extr. tenet omitted The President of Declarations in C. B. in B. R. in Scacario The Indorsement on the Copy to be left with the Tenant and what the Tenant is to do thereupon The Rule for confessing Lease Entry and Ouster in B. C. and in B. R. IF one do declare upon a Lease in Ejectione Firme and that by Virtue of that Lease he was in possession of the Lands thereby let to him until that he was ejected by the Defendant it is supposed that the Lessor who made the Lease to him was alive at the time of the Action brought Pract. Reg. 110. The Plaintiff in Ejectment declared of a Lease for three years if the Wife of the Plaintiff shall so long live and does not shew that the Wife is yet in Life yet per Cur ' this being after a Verdict is made good by the Stat. 21 Jac. of Amendments after Examination by the Sheriff And in Arundel's Case in Ejectment the Plaintiff declares that the Lady Morley being only Tenant for life made a Lease to him for three years if she should so long live virtute cujus intravit fuit possessionat ' until the Defendant entred upon him illum à firma sua praedicta termino suo nondum finito extratenet c. and he did not averr the Life of the Lady Morley But per Cur ' this amounts to an Averment for he
saith his Term is not yet ended which implies she is alive and the years not expired and this was after a Verdict But had it been demurred to it had been more ambiguous So Dyer 304. in Ejectione Firme on a Lease his Supposition that the person adhuc seisitus existit implies his Life Siderf p. 61. Palmer Rep. 267 268. Arundel and Mead. Cro. Jac. mesme case 2 Browl. 165. It was the Opinion of the Court in Cro. El. p. 18. Higgins and Grant's Case That if in Ejectment one declares of a Lease by a Parson he ought to averr his Life for by his death his Lease is void but it 's now otherwise 2 Bulstr 79. Cr. El. 18. Higgins and Grant Of the Delivery of Declarations Filing and Entry The Court A new Declaration delivered on the Essoyn-say in Car. 2. Snow and Cooley's Case upon Motion ordered That a new Declaration delivered on the Essoyn-day should be sufficient the old one being delivered before the Lessee dying and the Name was changed there being sufficient Notice and this being the Act of God shall not prejudice 1 Keb. 755. If the Declaration in Ejectment be delivered after the Essoyn-day The Declaration is delivered after the Essoyn-day and the Consequence it is but entred of that Term and not of the Term before and the Plaintiff in such case cannot have Judgment the same Term but if he doth not move the following Term to have Judgment especially if any Assises intervene he cannot have it without new notice left at the House of the Defendant and the Default made at first 1 Keb. 721. If the Declaration in Ejectment be of Michaelmas-Term What day the Bill was filed is examinable whether after the day of the Lease tho' it 's the same Term. which relates to the first day of the Term yet it 's a matter of Evidence and examinable what day the Bill was filed and if it was after the day of the Lease all is well On a special Verdict it was moved for the Defendant That the Declaration was in Michaelmas-Term 2 Jac. 2. and the Demise is laid to be the 30th of October 2 Jac. 2. and so after the Term began Note the Declaration cited an Original and an Original was produced Teste 2. Nov. which was after the Demise and the Prothonotaries informed the Court That this was frequently allowed and that no Memorandums of the Originals bearing Teste within the Term was used to be made upon the Record Sid. p. 432. Prodger's Case 2 Ventr Tonstale and Broad It is the Course of the Court in Ejectment if the * If the Owner prays to be made Defendant the Declaration to be entred as of the same Term but no new Imparlance Owner of the Land comes in and prays to be Defendant the Declaration shall be entred as of this Term altho' it were of the last Term against the casual Ejector but yet being by favour of the Court admitted he shall have no new Imparlance besides that which the casual Ejector had And by Hide there is difference between the Tenant in Possession who is Defendant ex debito on his Prayer contra of J. S. who is only concerned in Title 1 Keb. 706. Roch and Plumpton If the Declaration filed be paid for Where Copies of the Declaration need not be paid for they need not pay for the Copies and so a Trial at Bar shall not be hindred for want of payment of the Copies 2 Keb. 805. I find a Rule of Court to change the year thus ss Mich. 13 Car. Ordinat est per Curiam nono die Octob qd quer ' narrationem suam in intratione inter partes de Termino St. Trin ult intxat in Anno dimissionis emendavit Et ubi per misprisionem Clerici allegavit dimissionem fieri duodecimo die Aprilis Anno undecimo Caroli fieri debuit Anno duodeeimo quer ' solveret Def. miss per Magistrâ— Gulston taxand pro emendatione illa ex motione Magistri Boon Lessee for three years makes a Lease for five years in Ejectment to try the Title Lease not warranted by the Declaration and the Jury on special Verdict doubt whether the Defendant be guilty for 3 or 5 years Per Cur ' the Declaration is ill and the Plaintiff can have no Judgment Per Hale the Lease is good only for three years Declaration and the Defendant shall be guilty for no more else the Plaintiff would recover Terminum praedict ' which is five years but no Judgment can be for three years being not warranted by the Declaration Tr. 27 Car. 2. B. R. Rowe and Williamson Mr. Levett's Case of the Inner-Temple Sir Roger Puleston Kt. Plaintiff Sir Peter Warburton and others Defendants Ejectment upon the Demise of John Levet and his Wife wherein the Plaintiff declares that John Levett and Margaret his Wife the 10th of April 1697. demised to the Plaintiff Habend from the 25th day of March then last past for five years THIS was tried at the Bar Argument and a Verdict for the Plaintiff and the Defendants have moved in Arrest of Judgment Argued at the King's Bench before Lord C. J. Holt c. for that the Demise is laid the 10th of Apr. 1697. which is not yet come whereas it should be 1696. which the Plaintiff hath moved to amend and the same ought to be amended c. for these Reasons wherein I shall only apply my self to the Statute of the 16 and 17 of King Charles the Second Cap. 8. which I humbly conceive hath not been sufficiently spoken to in this matter which saith That no Judgments shall be staid or reversed after Verdict for any Mistake in the Christian Name Day Month or Year by the Clerk where the right Name Sirname Day Month or Year in any Writ Roll Plaint or Record preceeding or in the same Roll or Record are once rightly named but that all such Omissions Variations Defects and all other matters of the like nature being not against the right of the matter of Suit nor whereby the Issue or Trial are altered shall be amended by the Records That we are within the Benefit of this Statute I shall offer this to your Lordship The Declaration against the casual Ejector delivered to the Tenants in the Country was right that expressing the Demise to be the 10th of April 1696. which ought to have been the time mentioned in this Declaration for all the mistake was only betwixt septimo sexto and there is an Imparlance entred on the Roll in Easter-Term last against the casual Ejector which is right As in all Actions brought by Bill the usual Method of proceeding is to file the Bill or Declaration in the Office and as all Defects on the Roll are amendable by that so this being brought by Original instead of Filing a Bill in the Office an Imparlance is entred on the Roll and the Method of proceeding is in the same manner as in the
but not for another and new Ejectment Recovery in one Ejectione Firme a Bar in another And in Godbolt's Rep. Case 128. in Trespass the Defendant pleaded that at another time before the Trespass he did recover against the same Plaintiff in Ejectione Firme and demanded Judgment Per Cur ' it is a good Plea prima facie and that the Possession is bound by it for otherwise the Recovery should be vain and ineffectual And by Anderson If two claim one and the same Land by several Leases and the one recovereth in Ejectione Firme against the other that if afterwards the other bringeth an Ejectione Firme of the same Land the first Recovery shall be a Bar against him Per Rhodes a Recovery in an ad terminum qui praeteriit shall bind the Possession Godb. p. 109. no. 128. 3 Leon. 194. In Trespass for breaking his Close the Defendant pleads before this he had brought Ejectione Firme against the now Plaintiff and recovered and had Execution Judgment si actio Per Cur ' in 1 Leon. 313. Kempton and Cooper's Case and 3 Leon 194. the same is a good Bar and the Conclusion of the Plea is also good Judgment si actio without relying on the Estoppel and by two Justices it is no Estoppel for the Conclusion shall be Judgment si actio and not si serra respond ' and it was well pleaded For as by Recovery in Assise the Freehold is bound so by Recovery in Ejectione Firme the Possession is bound And by Anderson a Recovery in one Ejectione Firme is a Bar in another especially if the party relieth upon the Estoppel and altho' it be in an Action personal and in the nature of a Trespass yet the Judgment is good habeat possessionem termini sui during which Term the Judgment is in force and it 's no reason he should be ousted by him against whom he recovered for so Suits would be infinite but this grave Advice is now laid aside 4 Leon. 77. Spring and Lawson Note In Ejectione Firme against two Defendants one confesseth the Action and the other pleads in Bar Non Culp ' per Cur ' tho in Trespass against two 2 Defendants one confesseth the other pleads in Bar he cannot leave the one and proceed against and the one makes Default and the other confesseth the Action he may well relinquish his Suit against him who makes Default and proceed against the other which confesseth or pleads in Bar because this Suit is only in point of Damages but not so in Ejectment he cannot relinquish his Suite against one and proceed against the other for if so any Man may be tricked 2 Bulstr 113. Expiration of the Term in Ejectione Firme is no Plea Latch 106. Upon a Trial at Bar between Odil and Terril a Juror was challenged for that he said to one of the parties Provide you to pay for if I am sworn I will give the Verdict against you And that this is true the Parties to whom the Words were spoken did offer to depose the same and the Question was if he should be suffered to swear this he being one of the parties and he was allowed by the Court to be sworn to prove the Challenge good the other The Juror had bought Land of the Eessor and for this Cause the Triers found him not to be indifferent and so he was withdrawn Another Juror was challenged in this case for that he had bought Land of one of the parties in the Suit viz. of the Lessor and that the Lessor did owe to this Juror 10 l. and notwithstanding this Challenge the Triers found him indifferent otherwise per Cur ' if the Juror had owed Money to one of the parties 1 Bulst 20 21. Odil and Terril CHAB IX Of Challenge What is Principal or not Of Elisors Of Venue Where the Parish and Vill shall be intended all one Where it shall not be de Corpore Comitatus Where the Venire fac ' is amendable Venire fac ' to the Coroners because the Sheriff is Cousin to one of the Defendants A Venire de Forrest Venire de Novo for Baron and Feme BY Coke in Guest and Bridgman's Case Cousin to the Lessor it 's not a principal Challenge that the Sheriff is Cousin to the Lessor in Ejectment for the Lessor cannot hinder the Action of the Lessee this is not Law 1 Rolls Rep. 328. 2 Rolls Rep. 181. Banister's Case Venire fac ' awarded to the Coroners upon Surmise that the Lessor was Servant to the Sheriff Lessor Servant to the Sheriff Q. if it be a principal Challenge if it be no principal Challenge then is not the Writ well awarded and is not aided per Stat. 32 H. 8. Cro. Jac. p. 21. Harebotle and Placock Challenge to the Sheriff The Sheriff Cousin to the Plaintiff and a Venire fac ' prayed to the Coroners because the Sheriff is Cousin to the Plaintiff and shews how and because the Defendant did not deny it a Venire fac ' was awarded to the Coroners and Judgment was arrested because it was not a principal Challenge and a Venire de Novo awarded to the Sheriff 1 Brownl 130. Cradock and Jones It is not any principal Challenge to a Juror in Ejectione Firme That he had married the Cousin-german of A. That a Juror had married the Cousin-german of A. who was the Wife of R. from whom is descended H. from whom is descended B. who have the Reversion of the Land in question after the Death of his Mother who is to had an Estate for Life this is not any princapal Challenge because the Estate of B. does not appear in the Record and he had not the immediate Reversion 2 Rolls Abr. 654. Gabriel Dennis's Case In the Lord Brooks's Case the Court was informed That rhe Lessor of the Plaintiff was High Sheriff of the County and that the Coroner was Under-Sheriff Elisors and it was prayed that that Elisors might return the Jury but the Court would not grant it at the Prayer of the Defendant though the Plaintiff offered to agree to it it being in a Trial of Nisi prius but had it been in a Trial at Bar the Court would have granted it That the Lessor of the Plaintiff is High-Sheriff a principal Challenge but the regular Course is for the Plaintiff to pray it or else the Defendant may challenge the Array at the Assises for it is a principal Challenge that the Lessor of the Plaintiff is High-Sheriff or of Kindred to the Sheriff Tr. 1657. Hut 25. Moor 470. Rolls Rep. 320. 15 Car. 2. B. R. Duncomb and Ingleby In Ejectment the Plaintiff suggesteth that his Lessor the Sheriff and Coroners were Tenants to a Dean and Chapter Elisors whose Interest was concerned and prayed the Venire fac ' to Elisors and had it being confessed by the Defendant and the Court took it as a principal Challenge Duncomb and Inglesby's Case In Ejectione Firme the
by Baron and Feme on his Death she is liable as well as other Joyntenant Surviving 1 Keb. 827. Morgan and Stapel's Case The Lessor of the Plaintiff by several Rules of Court on Demand The Lessor of the Plaintiff where to pay Costs ought to pay Costs upon the Insufficiency or Skulking of the Plaintiff in Ejectment 1 Keb. 17. The Lessor of the Plaintiff is liable to pay Costs tho' he shall never be forced to give Security for them but the Lessor of a Tenant in Possession is not liable to Costs because tho' he may come in gratis and defend his Title Tenant in Possession liable to pay Costs by the Law yet the Tenant in Possession is only liable to pay Costs by the Law But only by the Course of the Court unless the Tryal be by the Lessors means brought to the Bar and then he shall never have a second Tryal at Bar before he hath paid the Costs of the former Tryal but yet the Court for Non-payment of Costs will not hinder proceedings in the Country Per Cur. 1 Keb. 106. Latham's Case Note In Judgment against his own Ejector no Cost to be paid by the Tenant in Possession Upon a Judgment against his own Ejector in defalt of confessing Lease Entry and Ouster according to Rule of Court without Special Rule no Costs shall be paid by H. The Tenant in Possession that made the defalt c. Contra upon Tryal had against H. because the Plaintiff hath the Benefit of the Suit viz. Judgment against his own Ejector whereby he may recover the Possession 1 Keb. 242. Verdict was for the Defendant Allegation by the Plaintiff to save his Cost not allowed and the Plaintiff to save his Costs alledged That the Venue was misawarded and that there was a Fault in the Declaration but resolved per Cur ' the Defendant shall have his Costs 2 Rolls Rep. 327 Pritchard and Reynell Palmer 365. mesme Case The Plaintiff in Ejectment was nonsuited The Plaintiff not to take advantage of his own insufficient Declaration which was recorded and the Defendant sued for Costs upon the Stat. 4. Jac. c. 3. The Plaintiff alledgeth insufficiency in his own Declaration to avoid Costs upon the Words of the Stat. That in Ejectione Firme and every other Action where the Plaintiff might recover Costs c. If it had been found for him that then upon Nonsuit c. in every such Action the Defendant shall have Judgment to recover Costs against him and the Plaintiff pretends in such Action he cannot recover where the Declaration is not sufficient But per Cur ' there is no reason the Plaintiff should take Advantage of his insufficient Declaration Palmer's Rep. 147. Dove and Knapp Debt was brought on the Stat. Costs on Stat. 8 Eliz. on Nonsuit and the Stat. mistaken of 8 Eliz. for Costs in an Ejectione Firme the Plaintiff being nonsuited supposing the Statute to be made ad Parliamentum tentum 8 Eliz. whereas the Parliament began Anno quinto and by Prorogation was held in 8 Eliz. so it ought to have been ad Sessionem Parliamenti tent ' Anno octavo Eliz. and ruled to be ill Cro. Jac. 111. Ford and Hunter If no Continuance be entred Costs for want of Continuances entred then a Discontinuance may be entred and he may recover Costs in Ejectment 2 Bulstr 63. Per Stat. When Nonsuit shall be for want of a Declaration 13 Car. 2. c. 11. Nonsuit shall be for want of a Declaration before the end oâ— the next Term after Appearance and Judgment and Costs against the Plaintiff Statâ— 13 Car. 2. c. 11. In all personal Actions and in Ejection Firme for Lands c. depending by Originâ—â— Writ There need not be 15 days between the Teste-day and Day of Retorn after any Issue therein joyned anâ— also after any Judgment had or obtained there shall not need to be Fifteen Days between the Teste-day and Day of Retorn oâ— any Writ of Venire fac ' Habeas Corpus Juratt ' Distringas Jurat ' Fiere fac ' or Cap ' ad sat ' and the Writ of Fifteen days between the Teste-day and the day of Retorn of any such Writ shall not be assigned for Error Stat. 13 Car. 2. c. 11. Infant Lessor in Ejectment shall pay Costs 3 Keb. Infant Lessor pays Costs 347. Masten and King Upon a Verdict against all Evidence the Court will tax Costs and will not suspend it till a new Tryal 1 Keb. 294. If the Defendant whose Title is concerned in an Ejectione Firme will not defend his Title to the Lands in Question and the Verdict do pass against the Plaintiff the Ejector may release the Damages Pr. Reg. 100. Note This Rule as to paying of Costs if a Man had a Verdict in Ejectment The sole Remedy for Costs in the first Tryal is by Attachment unless the second Tryal be in the same Court after a Verdict and Costs taxed and an Attachment for not paying them and whereas he cannot procure them of him who ought to pay them he sues the same Party for the same thing again in an other Court and he shews this by Motion and prays he may not proceed till Costs paid yet the Court will not grant it but he ought to resort to the Remedy of the Process of the Court where he recovered for these Costs and so it is if it was in the same Court for Costs for not going on to Tryal but if it were for Costs after a Verdict in the same Court there upon Affidavit of this it 's good Cause to stay the second Tryal for the same thing unless the Costs of the first be paid Sid. p. 229. Austin and Hood Upon a Tryal at Bar in Ejectment where two were made Defendants Where Costs are confessed on Lease Entry and Ouster c. and that the other did not and had entred into the Common Rule and at the Tryal one appeared and confessed Lease Entry and Ouster but the other did not and after Evidence given the Plaintiff was Non-suited and Costs taxed for the Defendants Per Cur ' both these Defendants are intitled to the Costs and he that did not appear might release them to the Plaintiff But the Court said If there should appear to be Covin between the Lessor of the Plaintiff and the Defendant who did appear to release the Costs they would correct such Practice when it should be made to appear 2 Ventr 2. W. M. Fagge and Roberts Berkley had Judgment in Ejectione Firme in C. B. and Execution of his Damages and Costs Foot brings Error and the Judgment is affirmed whereupon B. prays his Costs for Delay and Charges but could not have them for no Costs were in such Case at Common Law And Stat. 3 H. 7. c. 10. gives them only where Error is brought in delay of Execution and here tho' he had not Execution of the Term yet he had it of his
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.
because how good a Title soever the Defendant hath he cannot give in Evidence any other matter than what was before Ruled But by Twisden the Title being admitted other matter may be given in Evidence as a Release or Fine by the Plaintiff And the same Law is in Action by the Lessor in the former Action as by the Lessee and against the Undertenant or any that claim under the former Defendants Title especially the contest being for profits during the time of the former Action hanging So it is said in Harris and Wills's Case If Recovery be in Ejectione Firme and after Trespass is brought for the mean profits before the Lease nothing shall be given in Evidence but the value of the Profits and not the Title For if it should be so then long Tryals would be infinite Also if it be between the same Parties the Record is an Estoppel so the Court held it should be if it were against Undertenants But the Court granted a Tryal at Bar in assurance they would not insist upon the Points formerly adjudged but admit it and insist upon new Title Siderf p. 239. Collingwood's Case In 1 Will. and Mary The Court was moved to set aside a Verdict recovered in an Action for the mean profits after Recovery in Ejectment shewing that the Defendant in the Ejectment had brought another Ejectment since and recovered so that the first Recovery was disaffirmed and therefore there ought to have been no Recovery for the mean profits but the motion was denied per tot Cur. 2 Ventris Reports Trespass lies by Recoveror in Erroneous Judgment for a mean Trespass because the Plaintiff in Writ of Error recovers all mean profits and the Law by fiction of Relation will not make a wrongdoer dispunishable 13 Rep. 22. But contra where Act of Parliament restores In Trespass with continuando to recover mean profits an Entry and Possession of the Land before the Trespass must be proved and also another Entry after the Trespass Lessor is the principal Person lookt upon in the Law to Sue for the mean profits 2 Keb. 794. A Termor being Outlawed for Felony granted his Term and Interest to the Plaintiff who is put out by J. S. and after the Outlawry is reversed and the Plaintiff brought Trespass for the profits taken between the Outlawry Reversed and the Assignment adjudged that the Action did lie for tho' during that time that the Queen had the Interest and the Assignee had Right yet by the reversal it is as if no Outlawry had been and there is no Record of it Cr. Eliz. 270. Ognells's Case It was held by Justice Vernon where a Man would recover the mean profits in Trespass he must prove Entry into every parcel and not into one part in the name of all An Action of Trespass came to Tryal before T. for recovering the mean profits and the Trespass was laid the 11 of May with a continuation and the first Entry was before the 17 Day And an Ejectment had been brought of this Land the same Assizes and because a second Entry is required to recover the mean profits the which if it shall be will happen after that time which he hath acknowledged himself out of Possession by his Action of Ejectment and such Entry will abate the Action it was directed to find Damages for the first entry only It is a Rule in Law By the Re-entry of the Disseisee he is remitted to his first Possession and is as if he had never been out of Possession and then all who Occupied in the mean time by what Title soever they come in shall Answer to him for their time as if a Disseisor had been Disseised by another The first Disseisee Re-enters he shall in Trespass punish the last Disseisor otherwise after his Re-entry he should have no remedy for his mean profits Note In Trespass for mean profits Special Bail is always given 1 Keb. 100. Writ of Enquiry for mean profits abates by Death after Judgment Writ of Enquiry for mean profits how abates and before or pendent Error but after affirmed is in mitigation Warren and Orpwood 3 Keb. 205. Where one Declares on a Fictitious Lease to A. In whose name 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 Lessees name ut dicitur It s a note in Siderf p. 210. If one Recover and had Judgment in Ejectione Firme according to the usual practice by confessing Lease Entry and Ouster c. it was a doubt by the Court if upon such Confession Lessee may have Trespass for the mean profits from the time of the Entry confessed for it seems it is an Estoppel between the Parties to say That he did not enter Tamen Quaere because this Confession is taken to Special purpose only Siderf p. 210. If a Writ of Error in Ejectment abates by the Act of God a second Writ shall be a Supersedeas Aliter where it abates by the Act of the Party 1 Vent 353. Judgment in Ejectment The Defendant Plaintiff brings a Writ of Error The Plaintiff who is Defendant in the Writ of Error brings a Scire fac Quare Executionem non To the intent the Defendant Plaintiff in Error might assign Errors To which the Plaintiff in Error pleads That the Defendant ought not to have Execution because he was in Possession already by vertue of Hab. fac possessionem Per Cur. It s a trick for delay The Scire fac being only to the intent that the Defendant may assign Errors and there can be no such Plea to it in stay or delay of Execution 1 Keb. 613. Winchcomb's Case CHAP. XVII Writ of Error Where it lies Of what Error the Court shall take Conisance without Diminution or Certificate Variance between the Writ and Declaration Variance between the Record and the Writ of Error One Defendant dies after Issue and before Verdict Non-age in Issue on Error where to be tried Amendment of the Judgment before Certiorari unaided Release of Errors from one of the Plaintiffs in the Writ of Error bars only him that released it and why Outlawry in one of the Plaintiff pleaded in Error Of Release of Errors by casual Ejector ERror lies in B. Where it lies R. upon a Judgment in Ejectment before the Justices in Wales per Stat. 27 H. 8. Error in Real Actions shall be reversed in B. R. and in personal Actions by Bill before the President and Council of the Marches Ejectment before Justices in Wales and because Ejectment was a mixt Action there was some doubt but it was resolved ut supra Moor p. 248. no 391. Writ of Error lies in the Exchequer-Chamber upon a Judgment in a Scire fac ' in Ejectione Sid. Crook Car. 286. Lessor or Lessee may have a Writ of Error on Judgment in Ejectione Sid. 317. In a Writ of Error
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