new Certificate to have the true Original certified Original taken out before the Cause of Action is Error Per Cur ' Take it for it is in Affirmance of a Judgment which ought to be favoured But in John's and Steyner's Case the Original bore Date 24 Junij 6 Car. and the Ejectment is supposed 31 Januarij Per Cur ' it's Error because the Original upon Diminution alledged was certified as an Original in this Action which is between the same Parties and of the same Land and of the same Term and being taken out before the Cause of Action it 's a vicious Original not aided by any Statute Stiles Rep. 352. Jennings and Downes Cro. Car. 272 281. Johns and Steyner It 's a Rule in the Register That in the Writ of Ejectione Firme there may not be Bona Catalla because that for Goods taken away a Man shall have an Exigend ' and in this Writ Distress infinite Plo. 228. b. So was Johnson and Davies's Case The Suit was by Original Writ which is of one Messuage Sixty Acres of Land Three hundred Acres of Pasture but per Curiam this shall not be intended the Original upon which the Plaintiff declared but that there was another Original which warranted the Declaration which is now imbesilled and this want is aided by the Statute of Jeofayls especially as this Case is because the Writ is Teste 18 Apr. Ret ' 15 Pasch c. This Declaration is in Trinity Term and here is no Continuance upon this Writ Cro. Car. 327. Johnson and Davis In Ejectione Firme the Paper-Book was right Where Amendment shall be by the Papre-Book or not scil Acram Terrae and the Bill upon the File was ill scilicet Clausum Terrae and the Bill was amended by the Paper-Book and the Difference is where there is a Paper-Book in the Office of the Clerk this being right all shall be amended by it but if there were not any Paper-Book and the Bill upon the File is ill there can be no Amendment and in this Case the Amendment was according to the Paper-Book which was in the Hands of the Plaintiff's Attorney Palmer 404 405. Todman and Ward It was an Exception in Haines and Strowder's Case because the Suit was by Original Writ and the Clause ostensurus was not in the Writ Palmer 413. Haines and Strowder Godb. 408. Case Crouch and Haines Case 488. The Original was Teste the same Day that the Ejectment was made Original Teste the same day of Ejectment and adjudged good per totam Curiam 2 Roll. Rep. 352 129. Beaumont and Coke As for the Amendment of Originals in Ejectione Firme Of Amendments of Originals in this Action there are many Cases in our Books I shall name one or two which may be as a Guide in others Ex divisione for ex dimissione was amended so Barnabiam for Barnabam and so what appears to be the Default of the Cursitor 1 Brownl 130. 1 Rolls Abr. 198. In Ejectione Firme If the Paper-Book be perfect tho' the Bill upon the File be not perfect yet it 's amendable after Verdict if the Bill be not perfect but Spaces left for Quantity of Land and Meadow and after the Paper-Book given to the Party is made perfect and the Plea-Roll and Nisi-prius Roll but the Bill upon the File was never perfected and after a Verdict is given for the Plaintiff this Imperfection of the Bill shall be amended because the Party is not deceived by this forasmuch as the Paper-Book which he had was perfect and it was the Neglect of the Clerk not to amend the Bill when the Party had given him Information of the Quantity 1 Rolls Abr. 207. Leeson and West Original in Ejectment was amended after Writ of Error brought as divisit for dimisit 2 Ventr 173. By the Stat. 13 Car. 2. c. 11. In all personal Actions and in Ejectione Firme for Lands c. depending by Original Writ after any Issue therein joyned and also after any Judgment therein had and obtained there shall not need to be Fifteen Days between the Teste-day and the Day of Retorn of any Writ of Ven ' fac ' Hab ' corpora jurat ' Distringas jurat ' Fieri facias or Capias ad Satisfaciend ' and the want of Fifteen Days between the Teste-day and the Day of Retorn of any such Writ shall not be assigned for Error If an Original in B. R. be ill Error upon it lies not but in Parliament Sid. p. 42. Action of Ejectment and also Battery in one Writ and it was moved in Arrest of Judgment because Battery was joyned in Ejectment the Damages were found severally and the Plaintiff released the Damages for the Battery and prayed Judgment for the Ejectment and had it 1 Brownl 235. Bide and Snelling Of Appearance If the Tenant in Possession do not appear in due time after the Declaration left with him Judgment against the casual Ejector for want of Appearance and enter into the Rule for confessing Lease-Entry and Ouster then upon Affidavit made of the Service thereof and Notice given him to appear upon Motion the Court will order Judgment to be entred up against the casual Ejector In Ejectment or any other personal Action if the Defendant do appear upon the first Retorn in Hillary or Trinity Term there can be no Imparlance without Consent or special Rule of Court In Actions real and mixt against an Infant he ought to appear by Guardian Infant how to appear and not by Attorney and Judgment in Ejectione Firme in Banco against the Infant Defendant upon a Verdict had against him was reversed for this Cause 1 Rolls Abr. 287. Lewis and Johns Ejectione Firme was brought against Thomas the Father and J. the Son the Father appeared by T. C. Attornat ' suum and the said J. per eundem T. C. proximum amicum suum who was admitted per Cur ' ad prosequend ' this is Error A Guardian and Prochein Amy are distinct Infant how to sue or defend and a Guardian or Prochein Amy may be admitted for the Plaintiff and a Prochein Amy is appointed by W. 1. c. 47. W. 2. c. 15. in case of Necessity where an Infant is to sue his Guardian or that the Guardian will not sue for him The Difference between Guardian and Prochein Amy. Want of and therefore he is admitted to sue per Guardian or Prochein Amy where he is to demand or gain but when he is to defend a Suit in Actions Real or Personal it always ought to be per Gardianum and the Guardian ought to be admitted per Cur ' Therefore the Defendant ought always to appear by Guardian and not by Prochein Amy and also to admit the Defendant ad prosequend ' is ill and preposterous Cro. Jac. 640. Maby and Shepard Pledges Error of a Judgment in C. B. in Ejectione Firme assigned in 1 Cro. Pledges not assigned for Error because Diminution was not
pray'd 91 594. in not certifying Pledges on Diminution alledged in a Writ of Error for that Cause per Cur ' Omission of Pledges or of one is Error tho' after a Verdict and the Defendant after in nullo est erratum pleaded may pray Diminution which cannot be granted but on Motion and then only to affirm the Judgment yet when the Record is come in it may be made use of to avoid the Judgment and because Diminution was not prayed the Court conceived it cannot be assigned for Error 1 Keb. 278 281. Hodges's Case Bail In Ejectment against Two one does not put in Bail it is Error 2 Rolls Abr. 46. Dennis Case In Ejectment on Non Culp pleaded by the Attorney for the Defendant Common Bail entred after the Attorney was dead Verdict was for the Plaintiff who had Judgment and Error was brought to reverse it because no Bail was put in for the Defendant yet the Attorney being once retained by Warrant to put in Bail and took his Fee and being but common Bail tho' the Attorney was dead yet the Bail was then entred as of the same Term it ought to have been done 3 Bulstr 181. Denham and Comber Trespass is within the Act of 21 Jac. which names Trespass generally Stat. 13 Car. c. 2. but Ejectment is not within that Act. Stat. 13 Car. 2. c. 2. orders Bail on Error in Trespass 1 Keb. 295. Power 's Case Note Error without Bail is a Supersedeas in Ejectment notwithstanding the new Act 13 Car. 2. c. 2. it being not within the general Word Trespass Id. p. 308. Lufton and Johnson Tr. When common Bail to be filed 14 Car. 2. B. R. ordered that Common Bail shall be filed for the Defendant before any Declaration by Bill in such Action shall be delivered to the Tenant in Possession of the Lands in such Declaration contained and that if the Attorney for the Plaintiff in B. R. shall fail thereof then no Judgment for the Plaintiff shall be entred against the casual Ejector nor shall the Tenant in Possession confess Lease-entry and Ouster at the Trial. Attorney was made Lessee in Ejectment Imparlance and he would not grant an Imparlance to the Defendant as the Course is because he is Attorney of this Court B. R. and so claims Priviledge that the Defendant may answer him this Term or else he will enter up Judgment against him for want of a Plea Quaere Stiles Rep. 367. CHAP. IV. Against whom Ejectione Firme lies or not and of the casual Ejector Of the old way of Sealing Leases of Ejectment by Corporations by Baron and Feme in what Cases now to be used EJectione Firme against one Simul cum had been ruled to be good and so used in the Common Pleas tho' heretofore it was adjudged to the contrary Stiles Rep. 15. It lies against Baron and Feme Lib. Intr. 253. 9. Rep. 77. e. Peytoe's Case Plo. 187. It lies against the Ejector or wrong Doer be who he will When the Course was to seal an Ejectment to try a Title of Land Who was accounted an Ejector formerly the Ejector in Law was any Person that comes upon any part of the Land c. in the Ejectment-Lease tho' it be by chance and with no intent to disturb the Lessee of Possession next after the Sealing and Delivery of the Ejectment-Lease and such an Ejector was a good Ejector against whom an Action of Ejectione Firme may be brought to try the Title of the Land in Question But he that was to try a Title of Land in Ejectment ought not to have made an Ejector of his own against whom he might bring his Action or to consent or agree with one to come upon the Land let in the Ejectment-Lease with an Intent to make him an Ector and to bring his Action against him for by that means the Tenant in Possession of the Land was after put out of Possession by a Writ of Habere fac ' possessionem without any Notice given to him or his Lessor of the Suit but now the Law is otherwise and altered by the new way of Practice The new course in Ejectments For now it is not usual to seal any Lease of Ejectment at all in this Action but the Plaintiff that intends to try the Title feigns a Lease of Ejectment in his Declaration and an Ejector and draws a Declaration against his own Ejector who sends or delivers a Copy thereof to the Tenant in Possession giving him Notice to appear and defend his Title or else the Ejector will confess or suffer Judgment by Default But if the Tenant or the Lessor will defend the Title then it is usual for them to move the Court that they may be made Ejector to defend the Title that is the Tenant appears and consents to a Rule with the Plaintiff's Attorney to make himself Defendant in the room of the casual Ejector and this the Court will grant if he will confess Lease Entry and Ouster and at the Trial stand meerly upon the Title but if they do not at the Trial confess Lease Entry and Ouster then the Judgment shall be entred against the casual viz. the Plaintiff's own Ejector Note The Court said in Addison's Case Mod. Rep. 252. That they take no Notice judicially that the Lessor of the Plaintiff is the Party interested therefore they punish the Plaintiff if he release the Damages but in point of Costs they take notice of him But before I proceed further The old way of Sealing Leases of Ejectment I hope it will not be tedious a little to shew how the Law and Practice was taken when Ejectment-Leases were sealed and Entries to be duly made and Warrants of Attorney made to deliver the Lease upon the Land by a Corporation Baron and Feme c. especially considering that in Inferiour Courts the old way of actual sealing Leases is continued Winch 50. 1 Brow nl 129. Godb. 72. Earl of Kent's Case And first The way to execute a Lease to try a Title the Land being in many Men's Hands was to enter into one of the Parcels and leave one in that place and then he must go into another and leave one there and so of the rest and then after he had made the last Entry there he sealeth and delivereth the Lease and then those Men that were left there must come out of the Land But when a Title was to be tryed by Ejectment and a Lease to be executed by a Letter of Attorney the Course was That the Lessor do seal the Lease only and deliver it as an Escrow and the Letter of Attorney and deliver the Letter of Attorney but not the Lease for the Attorney must deliver that upon the Land And upon Ejectment brought of Land in Two Villages as of an House and Forty Acres of Land in A. and B. and a special Entry in the Land adjoyning to the House viz. the putting in of an Horse which was drove out
Common Pleas the Issue is as much amendable by the Imparlance-Roll as it would have been by the Bill if the Action had been brought by Bill The Objection made to this Pulestone and Goodluck. is That tho' Tenants in Possession being not all duly served in the Country the Tenants agree to appear so as the Plaintiff would consent to try it at the Bar and that thereupon there was a new Declaration delivered which had this Mistake and seems to inferr that the former Declaration was waved and this was altogether a new Proceeding wherein the Court was misinformed for there was no new Declaration delivered and that which the Defendants produced was a Copy of the Issue only and proved nothing but that there was a Mistake which appears by the Roll and is admitted by the Plaintiff otherwise we need not this motion Now my Lord that the Defendants Appearance was to the Declaration delivered in the Country is plain for there was no other Declaration delivered nor was therein any other for them to appeal to besides it appears by the Rule wherein it is written Pulestone and Goodluck and under that the now Defendants shall be made Defendants in the room of Goodluck and shall confess Lease Entry and Ouster for the Lands in that Declaration mentioned and shall receive a Declaration and plead the General Issue and insist upon the Title only and that if the Plaintiff shall become Nonsuit for default of the Defendants confessing Lease Entry and Ouster then that Judgment shall be entred against the Defendant Goodluck c. Now my Lord I would know what Declaration the Defendants were to appear to it must be a Declaration against Goodluck and what Lease the Defendants were to confess it must be the Lease mentioned in the Declaration against Goodluck and what Judgment the Plaintiffs were to have if the Defendants did not confess Lease Entry and Ouster it must likewise be upon the Declaration against Goodluck. Now my Lord if the Defendants will shew a Declaration that was delivered them against Goodluck wherein there was this Mistake it would be hard upon us but if they cannot then the Declaration delivered against Goodluck is right and the demise they are obliged to confess is the demise in that Declaration and only mistaken by the Clerk's transcribing it Now My Lord if the Defendants have confessed a good and right demise and this hath been tried then it would be the greatest hardship in the World if the Court should not let the Plaintiff have the Benefit thereof and it is plain that the Demise the Defendants are by Rule to confess is the Demise in the Declaration against Goodluck. So that My Lord if there were no Statute to help it 〈◊〉 take it with Submission the Court having tried the Fact ought to make the Record according to the Fact they have tryed As to their consenting to appear for several of the Tenants that were not duly served on Condition the Plaintiff would try it at Bar My Lord that is an Argument against them and brings us within the Benefit of the Case betwixt Crawley and Parr where there was a Judgment in Ejectment by Confession and the Demise laid after the Judgment and amended after a Writ of Error brought because it was a Judgment by Warrant of Attorney for it should not be supposed that the Defendant gave a Warrant of Attorney to confess a void Judgment Now My Lord the Defendants consenting to appear shall never be intended to a void Declaration but to a good Declaration in order to a fair Trial. And My Lord we are the more intitled to the Benefit of it because we are Purchasors for we give a Consideration for it viz. agreed to try it at Bar and they themselves opened it so As to what was objected That when the Tenants have appeared to this Declaration in Ejectment and are made Defendants it is a new Action and that the Declaration against the Casual Ejector is rejected and that therefore this defect cannot be amended though right in the Declaration against the casual Ejector I give this Answer that the Declaration against this casual Ejector is not rejected but is by the common Rule in Ejectment made part of the Cause insomuch that if the Plaintiff be nonsuited he shall have his Judgment upon that Declaration and the Return of the Postea is Warrant for that Judgment so that by the common Rule in Ejectment they are so tied together that it is all but one Action and the now Defendants are to stand in the casual Ejector's place But My Lord the Words of the Statute are not so strict which are in any Proceedings precedenti Now My Lord the Declaration in Ejectment is a Proceeding and it is precedent and it is within the equitable meaning of the Statute which intends all Amendments that are by neglect of the Clerk if it appears that they are right in any of the Proceedings and for that end a Philiser's Note tho' no part of the Record hath been sufficient to amend by And My Lord the same may be said when the Defendant is arrested by a Lat. de Placito transgr ' and the Plaintiff declares in Debt or Case and mistakes the Christian Name Sirname whether shall it be amended by the Lat. and whether the Lat. shall be looked upon to be a Proceeding precedent to the Declaration because in another Action and so it would be if a Man be arrested de Placito transgr ' ac etiam Bill ' and the Plaintiff declares in Debt only this is likewise departing from the Writ but these are warranted by the Practice and Course of the Court these Processes being made use of only to force an Appearance and the Plaintiff may then declare in Case of Trespass or Debt as he sees good Now My Lord Declarations in Ejectment are the same thing because only made use of to force an Appearance and are by the common Rule in Ejectment become no more part of the same Action than a Lat. is But this My Lord we have a full Answer to for the Declaration against the now Defendant is entred on the Roll and is right But with Submission My Lord the Declaration is sufficient to warrant its own Amendment it being by Original viz. Que Johan ' Levett Maria eidem Rogero demiser ' ad terminum qui nondum praeteriit intraver ' ipsum à firma sua praedicta ejecer ' Now My Lord the Count may be amended by the Original which is that the Plaintiff's Lessors had before that time demised the Premisses to the Plaintiff for a Term not then past and if the Count be made of a Demise then in being it is all the Amendment we desire But My Lord here it may be objected When must that Demise bear date and commence Must the Court set a Date and Commencement to Plaintiff's Demise To which I answer That the Commencement is certain by the Declaration videlicet from the 25th
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
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.
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
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
THE LAW OF EJECTMENTS OR A TREATISE SHEWING The Nature of EJECTIONE FIRME the Difference between it and Trespass and how to be brought or removed where the Lands lie in Franchises In what Cases this Action lies or not Of the Old Way of Sealing Leases and of the New Practice Of Confessing Lease Entry and Ouster Of what things Ejectione Firme lies or not Of Declarations in this Action and what Special Pleadings are now in use Of Venues Issue Trial. As also Who are good Witnesses or not in the Trial on Ejectment and what shall be allowed good Evidence or not either as to Records or Matters in Fait Where Bills Answers and Depositions shall be read on a Trial or not Together with The Learning of Special Verdicts at large relating to Titles of Land and Estates in several Rules and of Judgments with their several Forms of Entries in Special Cases and of Habere facias possessionem how to be executed and in what Cases a new Habere fac ' possessionem shall be granted And lastly of Erroneous Judgments and Writs of Error and several other Matters all relating to Actions of Ejectments Very necessary for all Lawyers Attornies and other Persons especially at the Assises c. LONDON Printed for Iohn Deeve at Bernards-Inn Gate in Holbourn 1700. THE PREFACE TO THE READER UPon the first View of the Title of this Treatise I doubt not but many Persons will slight it being upon a Topick well known and understood as they imagine by even every Pretender to the Law There 's not the least Sollicitor or Attorney in any Nook of Cornwall or Corner of Cumberland but thinks he is privy to the whole Learning of Ejectments And yet if they would take the Pains to peruse the ensuing Sheets they doubtless may be of another Opinion and will find very useful and proper Matter relating to an Action which concerns the greatest Titles in the Kingdom and has made so great a Noise at the Barr and in the Circuits for Sixty Years last past Besides if there happen any material Mistake in this Action the Remedy is very chargeable I remember Mr. Levett's Case of the Inner-Temple the Argument whereof made by a very Ingenious Professor of the Law I have herein inserted The Record was an Issue of Trinity Term 1696. and the Demise is laid the 10th of April 1697. Habendum from the 25th day of March then last past whereas the Demise should have been laid the 10th of April 1696. And tho' Mr. LeveTt had a Verdict yet he could not have Judgment but was forced to a new Trial at Bar. And many more such Instances might be given I shall not dare to deliver my Opinion concerning the Change of Real Actions into Ejectione Firme but I know many Grave Lawyers have grumbled at the Inconveniencies of a Man's being too obnoxious to be trickt out of Possession However this we must all allow That since the said Alteration the Common Law hath lost a great Part of the Beauty and Nicety of its Pleading I have been large under two of the ensuing Titles I mean that of Evidence and the other of Special Verdicts Who shall be allowed as good Witnesses or not and what shall be lookt upon as sufficient Evidence both as to Matter of Record or Matter en Fait in this Action is of great Vse to be understood and the Cases that lay disperst in our Books for that purpose I have reduced to some Method And as for the right and exact drawing of Special Verdicts we all own it to be an undeniable Argument of a good Vnderstanding in the Law and of very great Consequence especially those which concern Title of Lands and Estates As for the Errata's of the Printer the Judicious Reader will find that they will not much interrupt the Sense and as for my own I humbly beg Pardon THE CONTENTS OF THE CHAPTERS CHAP. I. THE Nature of the Action of Ejectione Firme and the Reason of the change of Real Actions into Ejectments with the Lord Chancellor Ellesmore's Opinion thereon The Difference between Actions of Trespass and Ejectment in seven Diversities The Difference between Ejectione Firme and Quare ejecit infra terminum In what Court this Action to be brought or not Ejectments how to be brought in respect of the Place where the Lands lie Where to be tried Of Removal by Procedendo into inferiour Courts CHAP. II. Who shall have Ejectione Firme and in what Cases this Action lies or not in respect of Possession in respect of Entry congeable in respect of Exility of Estate By Lessee of Copyholder and how and whether before Admittance and the manner of declaring Of Ejectment by Executors by Infant by Lessee of a Simonist On Elegit On undue Extent and in case of holding over By Intruder by the King's Lessee by a Person Outlawed by Lessee of Bail on Extent and on Judgment against the Principal by Issue in Tail liable to a Statute who comes not in and pleads to the Sc ' fac ' on Entry of the Grantee of Rent with Proviso for Retainer till Satisfaction of Arrears by Cesty que Trust by Vendee of Commissioners of Bankrupts CHAP. III. Of Process in Ejectione Firme Of the Original What Mistakes in the Original are Error after a Verdict or not Of a vicious Original Of the want of an Original Of an Original taken out before the Cause of Action Of Amendments of Originals Where Amendment shall be by the Paper-Book Of the Retorn by Stat. 13 Car. 2. c. 11. Of Appearance Infant how to appear sue or defend The true Difference between Guardian and Prochein Amy. Of want of Pledges Of Bail Of Stat. 13 Car. 2. c. 2. Of Bail on Writ of Error VVhen common Bail to be filed Imparlance CHAP. IV. Against whom Ejectione Firme lies or not Of the casual Ejector Of the old way of Sealing Leases of Ejectment and in what Cases now to be used And of the new way of practise CHAP. V. Of the Rule of confessing Lease Entry and Ouster Whether such Rules may be made in inferiour Courts Rules of Court relating to confessing Lease Entry and Ouster Of Refusal to confess Lease Entry and Ouster and the Consequence Of how much the Defendant shall confess Lease Entry and Ouster In what Cases there must be an actual Entry and where it is supplied by confessing of Lease Entry and Ouster Rules concerning ones being made Defendant and of altering the Plaintiff of enlarging the Ejectment Lease CHAP. VI. Of what things an Ejectione Firme may be brought and of what not General Rules of Declarations in Ejectments Of Variance between the Issue-Roll and the Imparlance-Roll Of Entry and Ejectment supposed before the Commencement of the Lease Virtute cujus He entred how expounded Uncertainty in the Limitation of the Commencement and no Day of the Date shewed Et postea how expounded Mr. Levets of the Temple's Case Argued about amendment of a Declaration Declaration by Coheirs by Tenants
in Common by Baron and Feme By Joynt-tenants by a Corporation by Copyholder by Administrator CHAP. VII Where in the Declaration a Life must be averred and where it need not Of Delivery of Declarations at or after the Essoyn-day Declations when to be entred as of the same Term where the Copies need not to be paid for Declarations when amendable or not Of expressing the Vills where the Lands lie Of the Pernomen If it need to be of more Acres than the Plaintiff was ejected out of Of the Forms of the Declaration Vi Armis omitted Extr. tenet omitted The President of Declarations in B. C. in B. R. and in the Excheq The Indorsment of the Copy left with the Tenant and what the Tenant is to do thereupon The Rule of confessing Lease Entry and Ouster in C. B. and B. R. Affidavit in Ejectment to move for Judgment against the Casual Ejector CHAP. VIII What shall be a good Plea in Abatement in this Action Of Entry of the Plaintiff hanging the Writ Entry after Verdict and before the day in Bank After Imparlance no Pleading in Abatement and why Abatement because the Plaintiff shews not in which of the Vills the Land lies Ejectment against Baron and Feme Baron dies since the Nisi prius and before the day in Bank Of pleading to the Jurisdiction Conisance not allowable on Suggestion but it must be averred or pleaded How Prescription to the Cinque Ports to be made Ancient Demesne a good Plea in Ejectment and why It s a good Plea after Imparlance and why Of Plea of Ancient Demesne allowed the same Term and how Of Pleas puis darrein Continuance Entry puis darrein Continuance pleaded at the Assizes is resceivable and the Consequence of a Demurrer to this Plea Release of one of the Plaintiffs in a Writ of Error whom it shall bar Of Release puis darrein Continuance Plaintiff demurs to Plea of Entry puis darrein Continuance Quid Sequitur Accord and Satisfaction pleaded Aid prier and why the Defendant shall not have Aid pryer of the King aliter of a common Person A Writ not to proceed Rege inconsulto allowed Recovery and Execution in a former Action pleaded in Bar. Bar in one Ejectione Firme how a Bar in another CHAP. IX Of Challenge What is principal Challenge or not Of Elisors Of Venue VVhere the Parish and Vill shall be intended all one VVhere it shall not be de Corpore Comitatus VVhere the Venire fac ' is amendable Venire fac ' to the Coroners because the Sheriff was Cousen to one of the Defendants A Venire de Foresta Venire de Novo for Baron and Feme CHAP. X. XI Of Joyning Issue and Tryal In what Case no Verdict shall be Entred One Defendant Pleads Not guilty the other Demurs no Judgment upon the Demurrer till the Issue be tried Writ to Prohibit the Tryal Rege inconsulto Tryal in the Marches Consent to alter the Tryal New Tryal denied Of consent to a Tryal in a Foreign County Of Tryal in other County than where the Land lies Of Tryal by Mittimus in the County Palatine Who shall be good Witnesses in this Action or not Copy of a Deed. Deed cancelled Conditions Collateral Warrants found by a Jury What is good Evidence in Reference to a former Mortgage Where the probate of a Will is sufficient Evidence or not In Case of a Rectory what is good Evidence and what things the PaRson must prove Ancient Deeds Scirograph of a Fine Constant Enjoyment Evidence as to an Appropriation Deposition of Bankrupts Depositions in Chancery Transcript of a Record Inrolment of a Deed. Doomsday Book Of variance between the Declaration and the Evidence Of Demurrer to an Evidence ExEmplification of a Verdict Verdict Of a General Verdict Of Special Verdict Of Council subscribing the Points in Question Of finding Deeds in haec verba Eight Rules of Special Verdicts in Ejectment Of Estoppels found by the Jury and how they shall be binding What is a material variance between the Declaration and the Verdict Of Priority of Possession Where the Special conclusion of the Verdict shall aid the imperfections of it Where and in what Cases the Verdict makes the Declaration good Verdict Special taken according to intent Difference where the Verdict concludes Specially in one Point and where it concludes in General or between the Special conclusion of the Jury and their reference to the Court. Circumstances in a Special Verdict need not be precisely found Where the Judges are not bound by the Conclusion of the Jury Of certainty and uncertainty in Special Verdicts Of the finding Quoad residuum certainty or uncertainty in reference to Acres Parishes Vills and time of Verdicts being taken by Parcels How the Ejectment of a Manor to be brought Of a Verdict on other Lease or Date than is declared upon which shall be good or not Where a Verdict shall be good for part and void for the Residue The time of the Entry of the Plaintiffs Lessor where material Where the Jury ought to find an actual Ouster on him that had the right Prout lex postulat how to be understood Where and in what Cases Special Verdicts may be amended Where the Jury may conclude upon a Moiety or not Where a dying Seised or Possest must be found Where the commencement of an Estate Tail is to be found CHAP. XII Where the Defendant shall have Costs How the Plaintiff may aid himself by Release of Damages Executor not to pay Costs Lessor of the Plaintiff where to pay Costs Where Tenant in Possession liable to pay Costs or not Feme to pay Costs on the Death of her Husband Infant Lessor to pay Costs of the Writ of Enquiry the Entry If Writ of Error lies upon the Judgment before the Writ of Enquiry and why Writ of Enquiry how abated Costs for want of Entring Continuances Where the sole remedy for Costs in the first Tryal is to be had CHAP. XIII The Form of entring Judgments in this Action How the Entry is when part is found for the Plaintiff and part against him Qd. Def. sit quietus Quod Def. remaneat indefenss Against several Ejectors of form Of the Entry in case of the Plaintiff or Defendant One of the Plaintiffs died during a Curia advisare vult If the Death of one Defendant shall abate the Writ One Defendant dies after Issue joyned After Verdict and before Judgment the Plaintiff dies What Notice the Court takes of the Lessor of the Plaintiff Ejectment for the whole and a Title but for a Moiety how Judgment shall be In what Cases and for what Causes Judgment in Ejectments are Arrestable as Erreneous Judgment for the whole where it ought to be for a Moiety More Damages found than the Plaintiff Counts Judgment against Gardian and Infant Not severing intire Damages Against Baron and Feme quod capiantur Vi Armis omitted in the Declaration Plaintiff brings a Writ of Error and the Judgment is reversed
what Judgment he shall have What Judgment shall be if the Lease expires before Judgment In what Cases Judgments shall be amended Mistakes of Acres Omission Defalts of Clerk Variance of parcel If Scire facias on a Judgment in Ejectment may be brought by the Administrator of the Lessee No Judgment upon Nihil dicit but upon motion in Court of Judgment given against ones own Ejector in several good Cases and of a Practise to gain Possession CHAP. XIV Habere facias Possessionem how to be executed and when and in what Cases a new Habere facias Possessionem is to be granted or not The manner how the Sheriff is to deliver Possession How the Sheriff is to esteem the Acres How the Sheriff is to give Possession of Rent or Common How Habere facias Possessionem awarded into Ireland In what Cases a new Habere facias Possessionem shall be granted or not And of the Sheriff ' s demeanor therein After the Writ of Habere facias Possessionem returned and filed whether the Court may award a new Writ Where the first Writ is not fully executed if the Court will grant a new one Where Hab. facias Possessionem shall be after the year without Scire fac ' Return of Habere fac ' Possessionem with a Fieri facias Of Misdimeanors in giving Possession Sheriff's Fees CHAP. XV. Of Action for the mean Profits In whose name it shall be What Evidence shall be given in this Action or not The Writ of Enquiry for mean Profits how it abates If upon Confession of Lease Entry and Ouster the Lessee may have Trespass for the mean Profits from the time of the Entry confessed In Trespass for mean Profits Special Bail is always given CHAP. XVI VVrit 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 Nonage in Issue on Error where to be tried Amendment of the Judgment before Certiorari awarded Release from one of the Plaintiffs in the Writ of Errors bars only him that Released and why Outlawry in one of the Defendants pleaded in Error Of Release of Errors by the Casual Ejector where it s a fraud Error without Bail a Supersedeas Ejectment against eight And Judgment was only against three And Error brought grounded upon the Judgment ad grave damnum ipsorum Error of Ejectment in Ireland THE LAW OF EJECTMENTS CHAP. I. The Nature of the Action of Ejectione Firme and of the Change of Real Actions into Ejectments Difference between an Action of Trespass and Ejectment in Five Diversities Difference between Ejectione Firme and Quare Ejecit infra Terminum in what Court this Action is to be brought or not and of Removal by Procedendo into inferior Courts THIS Action of Ejectione Firme includes in it self an Action of Trespass as appears by the Beginning Body and Conclusion of the Writ for the Writ begins thus Si A. fecerit te securum de clamore suo prosequendo tunc pone c. and so begins the Writ of Trespass The Body of the Writ of Ejectione Firme is Quare unum Messuagium vi armis fregit intravit and all the Addition in the Ejectione Firme is Et ipsum à firmâ sua inde ejecit c. The Conclusion of both is Et alia enormia ei intulit ad grave damnum and the Trespass and Ejectment are so woven and intermixt together that they cannot be severed and the Entry in an Ejectione Firme is In plito ' Transgressionis Ejectionis Firme In 6 R. 2. Tit. Eject ' Firme a. it is called an Action of Trespass in its Nature The Consequence of this is That in this Action Accord with Satisfaction is a good Plea And Accord and Satisfaction for one shall discharge all the Trespassers and Ejectors and tho' the Term which is a Chattel Real shall be recovered as well as Damages yet it is a good Plea Now tho' we find few Titles of Ejectione Firme in our Old Books yet it was in use all along it was used in Bracton's time and Term and Damages were recovered therein In tempore H. 3. he saith Si quis ejiciatur de usu fructu vel habitatione alicujus tenementi quod tenuit ad terminum annorum ante terminum suum there the Lessee shall have a Writ of Covenant against his Lessor and against his Vendee he shall have a Quare Ejecit infra Terminum and as well against the Lessor as a Stranger an Ejectione Firme But this Action came to be more frequent in my Lord Dyer's time as may appear by his Complaint in Court when he was Lord Chief Justice of the Common Pleas The Reason of the Change of Real Actions into Ejectione Firmes which also gives us the Reason of the change of Real Actions into Ejectments All Actions saith he almost which concern the Realty are determined in the King's Bench by Writs of Ejectione Firme whereby the Judgment is quod recuperet Terminum and by that they are soon put into Possession And therefore in a Formedâ—n it was prayed by Council that they might proceed without Essoyns and feint Delays because the Plaintiff's Title appeared which my Lord Dyer granted Because said he this Court is debased and lessened and the King's Bench doth increase with such Actions which should be sued here for the speed which is there And continued he no Action in Effect is brought here but such Actions as cannot be brought there as Formedons Writs of Dower and the like And it is my Lord Chief Justice Hale's Observation in his Preface to Rolls's Abridgment The Remedy by Assises and several Forms and Proceedings relating thereunto were great Titles in the Year-Books and altho ' the Law is not altered in relation to them yet Use and common Practice hath in a great measure antiquated the use of them by recovering Possessions and the Remedy by Ejectione Firme used instead thereof So that rarely is any Assise brought unless for recovering Possesion of Offices And so of Real Actions as Writs of Right and Writs of Entry which are seldom brought unless in Wales by a Quod ei deforceat But now the Entry of him that hath right being lawful Men choose to recover their Possessions by Ejectione Firme But there was a new way invented to try Titles of Land in personal Actions but was not allowed as in Jeremy and Simson's Case 16 Car. 2. B. R. It was moved for Tryal at Bar on a feigned Action on the Case upon a Wager by Agreement of Parties to have the Opinion of the Court of the Validity of a Will but tho' the Action was laid in Middlesex yet being an Innovation and the way to subvert Ejectione Firme's which have subverted the Formedons and it sufficiently appearing feigned on the Record in that the Title of Land is hereby to be
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
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
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
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
whereof he is found Not guilty in as much as it is tenementorum praedictorum yet it shall be amended it being only the Default of the Clerk having the Postea before him when he entred the Judgment 1 Rolls Abr. 206. Sawyer and Hoskins Judgment quod recuperet and saith not terminum yet amended 1 Keb. 155. The Judgment was Amendment for Misprision of the Clerk quod recuperet the Possession of a Messuage Sixty Acres of Land Fifty Acres of Meadow and Fifteen Acres of Pasture whereas the Verdict was entred That he was found guilty of the Ejectment of a Messuage Ten Acres of Meadow and Thirteen Acres of Pasture and for the residue Not guilty so as there is not any Land in the Verdict and a lesser Quantity of Meadow and Pasture than is in the Judgment per Curiam it is amendable and is not like the Entry of a Capiatur for a misericerdia which is not amendable that being an Error in point of Law and cannot be imputed to the Default of the Clerk But here the Verdict is the Guide to the Judgment and when the Verdict is before the Clerk to enter up the Judgment it is but his Misprision especially the Entry of the Judgment in the Paper-book being right according to the Verdict Cro. Jac. 632. Mason and Stephenson EXECUTION In Ejectment against two Two Defendants one confesseth the other pleads Not guilty one confesseth the other pleads Not guilty and at the Tryal the Plaintiff is Nonsuited he cannot take Execution against him that confesseth but if by Rule of Court one be made Defendant for part and confess the Plaintiff notwithstanding the Nonsuit may take Judgment against him that confesseth for his part but if each Defendant take upon him the whole Title the Plaintiff in any case cannot have Execution but one Defendant being Lessor of the House reserving a Chamber who never had any notice of the Action and therefore Judgment entred of the whole House is not void quoad the Chamber only but wholly And Hide would have had the Attorney who entred Judgment pay Costs but ordered Possession to be delivered to the Tenant on Agreement to relinquish the Costs 1 Keb. 786. Burgoigne and Thomas It was a Question much debated If a Scire fac ' quare Executionem habere non debeat upon a Judgment in Ejectione Firme may be brought by the Administrator of the Lessee the Plaintiff in Ejectment Scire fac ' upon Judgment in Ejectment may be brought by the Administrator of the Lessee or Lessor himself or by the Lessor himself against the Free Tenants and Per Cur ' the Lessee or his Administrator as well as the Lessor himself shall have this Writ in such a Case this was on demurrer to the Scire fac ' Yet the Lessee nor his Administrator shall have it but the Lessor himself Sid. 317. Cole and Skinner Note Recovery by the Husband in Ejectione of the Wife 's Term. Baron and Feme are ejected out of a Term in the Right of the Wife and the Husband recovers in Ejectione Firme brought by him in his own Name this is an alteration of the Term and vests it in him only 1 Inst 46. Note After Judgment Court of Equity not to relieve the Mortgagor It was adjudged in Throgmorton and Sir Moyle Finch's Case That after Judgment for the Mortgagee in Ejectment a Court of Equity cannot relieve the Mortgagor but he ought to have preferred his Bill before Judgment 3 Bulstr 118. The Case was He by whom the Money was sent to be paid for the Redemption of the Land was by the way robbed of the Money but the Money was paid presently after Note also No Judgment upon Nihil dicit but upon Motion in Court In Ejectione Firme if a Rule is given to the Defendant to answer and he doth not and upon this another Rule is given to answer peremptorily and he fails to do it no Judgment shall be entred against him on a Nihil dicit but upon Motion in Court It is said in Carter and Claypool's Case 1 Rolls Abr. 887. If a Man recover in Ejectione Firme against J. S. who after dies he must sue Execution against his Heir for by Intendment J. S. his Ancestor the Ejector was was a Disseisor Of Judgment against ones own Ejector Judgment against the casual Ejector Council prayed that he might not plead to the Declaration of Michaelmas Term on Lease of the Bishop of Worcester made this January Habend ' from the 20th of October last which is ill per Cur ' and Judgment stayed but this is a good Declaration of this Term by new Delivery Declaration is of that Term when the Tenant appears tho' of Course a Declaration is of that Term always when the Tenant appears which was but this Term yet Judgment stayed 3 Keb. 729. Hill 18. Car. 2. Finch and Pley The Action was of Easter Term and the Demise and Title of the Plaintiff is but two days before Trinity Term A Trick to gain possession and there was a Rule for Judgment against the casual Ejector per Cur ' this is but a Trick to gain Possession as Sir Richard Mincham's Case was who delivered Ejectments in his Wife's Life-time on Lease then when he had Title as of subsequent Term when she was dead and it is not fit to put the Tenant to a Writ of Error So the Rule was set aside and ordered a new Declaration 3 Keb. 343. Tr. 26 Car. 2. Stedman's Case Judgment against ones own Ejector cannot be entred When Judgment against ones own Ejector to be entred till the Postea retorned and indorsed that the Nonsuit was for want of confessing Lease Entry and Ouster which the Secondaries agreed for a Rule 1 Keb. 246. Sir Hugh Middleton's Case Council prayed Judgment against his own Ejector in an Action for Lands in the County Palatine of Chester Judgment against ones own Ejector for Lands in Com' Chester which the Court granted because when the Defendant hath pleaded to Issue they may try it by Mittimus in the County Palatine 2 Keb. 135. Reddish against Smith CHAP. XV. Habere facias Possessionem 1 Keb. 579. How this Writ is to be executed And when and in what Cases a new Habere facias Possessionem shall be granted or not How the Sheriff is to deliver Possession Habere facias Possessionem after the year without Scire fac ' and why THis Writ is made out by the Clerk of the Judgments By whom made out and when after Costs taxed and the Judgment signed In Ejectione Firme of 20 Acres of Land The Defendant on Not guilty pleaded is found Guilty for 10 Acres and Not guilty for the Residue Now the Plaintiff at his own peril Plaintiff at his own Peril to be put in Possession of the Acres sound upon his own shewing which they are shall be put in Possession Savil p. 28. And if a Man bring
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
Names of Baptism and cannot be amended but Curia advisare from Hillary Term till Pasche in the mean time the Defendant in the Writ of Error obtained a Release of all Errors from one of the Plaintiffs in the Writ of Error and the first day of Term Pasch pleaded it in Bar as a Plea puis darrein Continuance and thereupon a Demurer was entred in the Names of both the Plaintiffs in the Writ of Error Release from one of the Plaintiffs in Error shall bar only him that released it and why for in nullo est erratum being pleaded before there could not now be any Summons and Severance Per Curiam this Release shall bar him only that released it and not the other Plaintiff though the Action was in the personalty For the Plea being by way of Action to discharge themselves of Damages which were recovered against them and to be restored to the possession which was lost by the first Judgment and they being joyned in the first Action by the Act of the Plaintiff and their own voluntary Act it is not reason that the Act of one shall charge or prejudice the other But otherwise if they had been Plaintiffs in the Record by their own Act Cro. Jac. 116. Blewit and Snedstow Verdict was pro Quer ' for 10 Messuages 15 Acres of Land 15 Acres of Meadow and 20 Acres of Pasture and as to the Residue Non Culp And the Judgment was That the Plaintiff should recover the Messuages and the greater Quantity of Acres which were in the Verdict Upon which the Plaintiff brought a Writ of Error and assigned Errors and had a Scire fac and before the Defendant in the Writ of Error joyned in nullo est erratum it was moved in Common Bench for amendment of the Judgment It was objected 1. That the time after the Assignment of the Error was past for the amendment Amendment of the Judgment before a Certiorari awarded in Error Per Cur. The time is not past so long as a Diminution may be alledged or a Certiorari awarded it may be amended 2. The Judgment is the Act of the Court and therefore may not be amended Per Cur. It is the default of the Clerk who did not enter the Judgment according to the Verdict Jones Rep. p. 9. Ejectione Firme by two against one Defendant And on Not guilty Verdict for the Plaintiff The Error assigned was because Constantinus Callard was returned and so named in the Distringas but in the Pannel annext thereto by the Sheriff Constantius Callard was Returned and Sworn Release of Errors from one of the Plaintiffs in the Writ of Error pleaded shall bar only him that Released it and why and so was returned by that name on the back of the Postea It s manifest Error for they be distinct names of Baptism and not amendable But Curia advisare In the mean time the Defendant in the Writ of Error obtained a Release of all Errors from one of the Plaintiffs in the Writ of Error Ejectment against the Release of one shall not bar the other of a Writ of Error because this is to recover nothing but to have restitution of that which he lost by the Judgment And the first day of Easter Term pleaded it in Bar as a Plea puis darraine Continuance and thereon a Demur entred in the name of both the Plaintiffs in the Writ of Error For in nullo est erratum being pleaded before there could not be any Summons and Severance Per Cur. This Release shall bar only him that Released it for the Plea being by way of Action to discharge themselves of Damages which were recovered against them and to be restored to the Possession which was lost by the first Judgment and they being joyned in the first Action by the Act of the Plaintiff and not by their own voluntary Act it is not Reason that the Act of one should charge or prejudice the other for then by such practice any one might be charged and should have no remedy to discharge himself And the Judgment was reversed quoad him that did not Release and that he should be restored to all what he lost and quoad the other who released that he should be barred in his Writ of Error Cro. Jac. 116. Bluit and Snedstow 2 Rolls Ab. 411. Mesme Case So the Defendant in the Writ of Error Pleads Outlawry in one of the Plaintiffs Outlawry in one of the Plaintiffs pleaded in Error Per Cur. It s no Bar because this is an Action not to recover any thing but to restore them to what they had lost and to discharge them of Damages and Fines and they are forced to joyn because one of the Plaintiffs was a Defendant in the former Action Cro. Jac. 616. Bythell and Harrts Error without Bail is a Supersedeas in Ejectment Error without Bail a supersedeas 13 Car. 2. c. 2. notwithstanding the Act of 13 Car. 2. c. 2. being not within the general word Trespass 1 Keb. 308. Lufton's Case And unless all the Defendants in Ejectment do give Recognizance it s no Supersedeas for as to the Land its intire 3 Keb. 138. Cole and Levingstone Baron and Feme Lessors it s no Error to alledge the the death of the Wife before â—udgment Baron seised in the Right of the Feme makes an Ejectment Lease and the Lessee brings an Action upon it and hath a Verdict and Judgment it s not Error to alledge the death of the Wife before Judgment by which the interest of the Husband and Lease by him made to the Plaintiff determines because neither the Wife nor the Husband are Parties to the Action and this determins upon the Title to the Land for the Plaintiff may say That the Husband was seised in his own right 1 Rolls Abr. 768. Wilks and Jordan Error was brought to Reverse a Judgment in Ejectione Firme The Plaintiff in Ejectment dead before Judgment and Error in Fact assigned viz. That the Plaintiff in the Ejectment was dead before Judgment To which he that was Attorney for the Plaintiff pleaded That he was alive at such a place and upon this Issue joyned and found that he was dead Per Cur. The Issue is well joyned and the Judgment shall be reversed for this Error without Scirc fac against the Executors for until the Issue tried none can deny but that the appearance was good But the surer way had been for the Attorney to have pleaded quod venit pro magistro suo D. and not qd D. venit per Attornat Siderf p. 93. Dove and Darcen If a Man recover in Ejectione Firme The Plaintiff dies between Verdict and Judgment the Judgment is voidable by Error and after his Executor Sues Execution by Scire fac ' against the Recoveree the Recoveree may not avoid the Judgment nor stay Execution by saying That the Plaintiff died between the Verdict and Judgment or such like But he is put to his
Writ of Error for the Judgment is only voidable 1 Rolls Abr. 742. Hide and Markham But in 1 Rolls Abr. 768. If a Man brings Ejectione Firme in B. R. and there he hath a Verdict on Tryal at the Bar and after and before Judgment he dies The Plaintiff dies after Trial Judgment may be given and after Judgment is given against him the same Term. This is not Error because the Judgment relates to the Verdict Hide and Mark 's Case Lessor of the Plaintiff in Ejectment Lessor of the Plaintiffmay may have 〈◊〉 Writ of Error may have a Writ of Error upon a Judgment in Ejectione Firme Siderf 317. Cole's Case Release of Error vid. supra The Issue was that H. who was casual Ejector and gave Release of Errors was not the same Person Being tried The Court would not suffer the Defendant to Assign Error but conceived he was barred now 1 Keb. 755. Keyes and Bredon The Defendant obtains a Release of his casual Ejector Issue that he that made the Release was not the same person and pleads it to a Writ of Error of a Judgment by defalt of Ejectment in Ireland altho' the Issue was that he that made the Release was not the same Person as was casual Ejector Yet per Cur. It ought to be set aside and the Error Assigned 1 Keb. 705. vid. 7. Release by Casual Ejector is a fraud The Court conceived a Release of Errors Release by Casual Ejector a fraud obtained of the Casual Ejector by the Lessor being but Fictitious is void And the Court made a Rule That no such Release be accepted without Leave of the Court 1 Keb. 740. Keys and Bredon The Case was As it is Reported in Raymond 93 Keyes and Bredon The Plaintiff obtains a Judgment against his own Ejector in a Case where an Infant was in Possession and the Party concerned in the Lands Release by Casual Ejector a fraud brings a Writ of Error in the name of the feigned Defendant The Plaintiff in the Writ Pleads the Release of the Defendant Per Cur. Such Release shall not be allowed And the Court will not permit the Party to proceed to try the Issue if the Release be good or not because it is to Bar the Right of a third person On Ejectment after Judgment against Casual Ejector for not confessing Lease Entry and Ouster the Defendant in the Ejector's name brought a Writ of Error Ejector disavows the Suit and now the Ejector was brought to the Clerk of the Errors and disavowed the Suit and thereupon it was prayed by Council that a non Pros may be entred as is the usual Course in such Case 2 Keb. 579. M. 21. Car. 2. VVats and Loyd In the Lord Byron and Sir VVilliam Juxon's Case Council prayed leave to discontinue a Writ of Error brought in the Ejector's name of Judgment in the County Palatine of Lancaster against him by default shewing a Release of Errors by the Casual Ejector But the Court denied it but left them to Non suit the Plaintiff in Error 2 Keb. 853. A Release of Error by the Causual Ejector no Discontinuance in Error 2 Keb. 853. Ejectment was brought against eight Defendants in B. C. Error was brought grounded upon the Judgment and the Writ was ad grave damnum ipsorum and the Judgment was only against three and other five were acquitted The Error was assigned in the Non-age of the three Per Cur. The Writ of Error was good tho' it might be also ad damnum of those convicted But being only in the nature of a Commission whereby the King Commands the Errors to be examined this matter is not material Hob. 70. Yelv. 209. By Twisden The constant practice is for all to joyn and per tot Cur. Judgment ought to be reversed against all Error of a Judgment in Ejectione Firme and in the Record a space was left to insert the Costs which had not been taxed if such an imperfect Record be certified yet it might be amended by Rule of Court there and then if it be removed by Error the Court there must amend it For it is the constant practice That if a Record be removed into the King's Bench out of the Court of Common Pleas by Writ of Error and afterwards amended by Rule of Court in the Common Pleas The Court of King's Bench must amend it accordingly vid. Hard. p. 905. 1 Ventr 165. Bell and Richards Ejectment was brought in C. B. in Ireland and declares against Commyn de Castrovilla Terris de Kilborough in such a County The Plaintiff had Verdict and Judgment Commyn brought a Writ of Error in B. R. in Ireland Error in Irel. and Assigns for Error the want of an Oiginal The Plaintiff rejoyns that such a Day an Original Writ was delivered to such a one and concludes to the Country And the Judgment was reversed there for want of an Original on which the Plaintiff brought a Writ of Error for reversal in B. R. in England And the Judgment given in B. R. in Ireland was reversed here for the matter was discontinued Because the Defendant in Ireland concludes al pais where in truth the matter of his Plea should be tried by the Record and the Plaintiff in Error doth not Reply or Demurr upon the Plea of the Defendant and so all is discontinued Also there was another apparent Error in the Declaration viz. the Action brought de castro villa terris in Kilborough without expressing the number and certainty of Acres and upon such general demand no Habere fac ' Possessionem can be awarded and executed Yelv. 117. St. John vers Commyn THE TABLE A. WHat shall be a good Plea in Abatement 110 After Imparlance no Pleading in Abatement and why 111 Where a Man Pleads in Abatement he ought to give the Plaintiff a better Writ ibid. Where the Plaintiff by his Demand confesseth the Writ abateable 112 Actions real changed in Ejectments and why 2 Acres according to the Statute Measure Accord and Satisfaction a good Plea in Ejectment 122 Declaration in Ejectment by Administrators 78 79 Amendment of Original Writs in Ejectment 27 Where and in what Cases Special Verdicts shall be amended Record of Nisi prius variant from the Roll not amendable 217 Affidavit in Ejectment to move for Judgment against the Casual Ejector Where an Answer in Chancery shall be good Evidence at a Tryal 161 Judgment against the Casual Ejector for want of Appearance 29 Appropriation Evidence 168 How Ejectment lies in Ancient Demesne 10 Ancient Demesne pleaded in Ejectment 116 Whether it may be pleaded after Imparlance 116 117 118 Plea of Ancient Demesne allowed the same Term and how 118 Aid Prier where it shall be granted in this Action and where not 122 B. The Bail Lets Lands to B. Judgment is against the Principal and extent on the Lands Leased B. brings Ejectment 21 Common Bail entered after the Attorney was dead 31 When Common Bail to
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
tryed in personal Actions it was totally denied but had it been by direction of Chancery the Court would do it but would in no wise grant this It was said by Ellesmere Lord Chancellor that until the 14. H. 7. it was never known that a Possession was removed by an Action of Ejectione Firme and said It was great pity it was allowed at this day for Law in England and therefore was of Opinion That an Action of Trespass Quare clausum fregit was much better to try the Title than an Ejectione Firme 1. Because no Possession was removed by the one 2. Because a Man may so plead in an Action of Trespass as that he may make the Plaintiff disclose his Title whereas by his Ejectione Firme it is no more than Non culp ' and then a Trial and so out of Possession without more business which he said was a Pick-pocket Action Ex M. S. 3 Leon p. 49. This Action is grounded on two Things videlicet the Lease and the Ejectment It was well observed in Eyres and Banister's Case Meor Rep. 418. That Ejectione Firme in former times was not thought to be an Action which concerned the Lessor but only the proper Interest of the Lessee but now of late times it is put in ure by the Experience of the Judges and all others that an Ejectione Firme is the Suit of the Lessor and the Lease made only to try his Title and to recover the Possession to him and the Suit is prosecuted at his Charge and his Lessee is but his Instrument to this purpose and all this to avoid the Charge and Delay of a Real Action and the Peril of being barred by a single Verdict And Partridge and Strainge's Case Plo. 78. was cited for the purpose if one being out of Possession above a year makes a Lease for years this is Maintenance within the Stat. 32 H. 8. and the Lessor and the Lessee shall lose the Value of the Land but if such a Person be at this day possest of such a Lease to try the Title and not by Contract that the Lessee shall hold the Land this is no Maintenance as hath been resolved in B. C. B. R. and Star-Chamber But for the better understanding the nature of this Action I shall shew wherein it differs from an Action of Trespass and a Quare Ejecit infra Terminum for tho' as was observed before it is in a sort a Trespass yet it differs from it in several Things In Trespass Damages are only to be recovered Diversity where the Damages are only recovered and where the Term. but in Ejectione Firme the Thing or Term it self is to be recovered as well as Damages And from hence another difference is observable in respect of Certainty If in Trespass the Plaintiff declares in one Acre and abutts it and the Jury find him guilty in dimidio Acrae praedict ' or in one Foot of it this is good tho' the Moiety is not bounded they have found the Trespass in the Moiety of the Acre bounded and this sufficeth â—n this Action where Damages are only to be recovered But if it were in Ejectione Firme it had been ill for it is not certain in what part the Plaintiff shall have his Habere fac ' possessionem And from this Diversity it is that if an Ejectione Firme be brought against two Defendants the one confesseth the Action and the other pleads in Bar Not guilty the Plaintiff cannot release his Suit as to one of the Defendants and proceed against the other but in Trespass in such Case he may because this Suit is only in point of Damages Yelv. 114. Winckworth and Man 2 Bulstr 53. Diversity Possession a good Title in Trespass but not in Ejectment and why Possession is a good Title for the Plaintiff in Trespass if the Defendant hath not a better to shew aliter in Ejectment for in Ejectione Firme if the Plaintiff hath not a Title according to his Declaration he cannot recover whether the Defendant hath Title or not as was Cotton's Case An Infant leaseth Land to C. at will who entred and ousted S. who thereupon brought an Ejectione Firme on a special Verdict no Title appeared to be in the Plaintiff and it was objected against the Lease at will because it was made by an Infant and no Rent reserved upon it nor the Lease made upon the Land and therefore the Lessee should be a Disseisor Per Cur ' be the Defendant a Disseisor or not it s not material here for if the Plaintiff hath not Title according to his Declaration he cannot recover and it is not like to Trespass where the very Possession without other Title is good 1 Leon 215. Cotton's Case Naked Colour is not sufficient in Ejectione Diversity colour not sufficient in Ejectione Firme and why Firme as it is in Trespass therefore if the Plaintiff make Title in Ejectment this Title of the Plaintiff ought of necessity to be answered viz. either by matter of Fact or in Law which confesseth and avoideth the Title or traverseth it For a naked Colour in this Action is not sufficient as it is in Assise or Trespass which comprehend not any Title or Conveyance in the Writ or Count as this Action does in both and in Godb. 159. in this Action a Man shall not give Colour because the Plaintiff shall be adjudged in by Title Dyer 366. Godb. 159. Piggot and Goddet's Case Allowance of Conisance of Franchise in Conisance of Trespass includes not Ejectments Trespass will not warrant an Ejectione Firme unless the Franchise had Conusance of all Pleas as was adjudged in the Case of the Bishop of Ely Ter. P. 18 Car. 2. B. R. In Clerks Case the Venire fac ' was ad faciend ' juratam in Placito Transgressionis where it should have been in Placito Transgressionis Ejectionis Firme and the Court would not amend it For though Ejectione Firme be but a Plea of Trespass in its Nature yet the Actions are several and therefore the Venire fac ' ought to be accordingly Cr. El. 622. Clerk's Case In Ejectment against two one pleads to Issue and the other demurs Issue first to be tried Ejectione Firme against two Defendants one pleads Not guilty the other pleads the Plaintiff replies and so Demurrer no Judgment shall be given on the Demurrer till the Issue be tried for in this Action the Possession of the Land is to be recovered and it may be for any thing that appeareth he who pleads the General Issue has Title to it but if it had been an Action of Trespass and the Plaintiff will release his Damages on the Issue joyned he shall have Judgment against the other 2 Leon. 199. Drake and Monday Trespass is deins Stat. 21 Jac. which names Trespass generally but Ejectment is not 1 Keb. 295. Power 's Case The Plaintiff declares in Trespass in one Acre and abutts it the Jury find him guilty in dimidio Acre praed
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
Siderf p. 24. Note After Default in Ejectment the Defendant may confess Lease Entry and Ouster After Default in Ejectment the Defendant may confess Lease Entry and Ouster and may give evidence and have all Advantages except Challenges and if the Plaintiff becomes Non-suit any one for the Defendant may pray it to be recorded Tryals per pays 195. The Defendant was by Rule of Court at the Tryal which was to be at the Bar to appear and confess Lease 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 the Judgment was for the Plaintiff upon the Rule and he was advised to pay the Jury Stiles Rep. 425. Harvey and Mountney Of the Ejectment-Lease You may observe what before is said That it 's a feigned Lease and by the new Rule is to be confessed and it 's laid sometimes for three years or five or seven years And it is good to lay it for longer than three or five years for I have known by Injunctions and other Dilatories it hath worn five years out and then the Plaintiff cannot have Judgment without beginning de novo Enlargement of the Lease for a longer Term by the Court. And therefore Pemble and Sterno's Case being adjourned into the Exchequer-Chamber the Court ordered an Enlargement of the Lease or Term from seven to twelve years which they may do by Law no Lease ever being actually sealed but declared on and consented to Tr. 21 Car. 2. Pemble and Sterne's Case The Lease was 24. Sept. Habend from Michaelmas next virtute cujus the Plaintiff entred Virtute cujus he entred and said not when Per Cur ' it shall be intended on the day after Michaelmas but if it had been virtute cujus he entred eod ' 24 day of Septemb. it had been ill P. 26 Car. 2 Hallam and Scot. Lease of all Warrants Ejectment of Part. Ejectment by Lessee of Lessee of the whole by the Daughters and Heirs of Sir Peter Vanlore How the Lease to be made where there are several parts uncertain claimed which was made by reason of the uncertainty of the Part claimed by the Plaintiff 2 Keb. 700. Lease made to try a Title in Ejectment Lease to try Title no Matenance is not within the Statute of Buying of Titles if it be not made to great Men but to a Servant of him that hath the Inheritance 2 Brownl 133. Note Ejectment may be brought upon a Lease made in the same Term 1 Ventris Upon a Lease made by Husbands and their Wives for the Tryal of a Title and the same executed by Letter of Attorney the Lease and Letter of Attorney were only sealed by the Husbands and so not good Per Cur ' the Wives ought to have sealed also and the Entry of the Attorney ought to have been in all their Names This by the old Course 2 Roll. 2. 13. CHAP. VI. Of Declarations Of what things an Ejectione Firme may be brought and what not General Rules of Declarations in Ejectments Variance between the Issue-Roll and the Imparlance-Roll Of Entry and Ejectment supposed before the Commencement of the Lease virtute cujus he entred how taken and expounded Uncertainty in the Limitation of the Commencement and no Day of the Date shewed Et postea c. how expounded The manner of Declaring by Coheirs by Tenants in Common by Baron and Feme by Joynt-tenants by a Corporation by Copyholder by Administrator THE new way of Tryals in Ejectment by Confession of Lease Entry and Ouster and standing only upon the Title make some Persons conceive that Cases or Resolutions about Declarations in Ejectments whose Form is now generally setled to be useless and antiquated And in truth they are so in a great measure and yet notwithstanding there are several good Rules and Resolutions as well relating to matters of Law as Practice and Forms even since the said new Method has been taken up both as to what things an Ejectment may be brought or not and Delivery Entry Variance and Amendments of Declarations as also how Declarations ought to be when Coparceners Joyntenants Corporations Baron and Feme Tenants in Common Administrators and the like are concerned And yet even those former Cases and Resolutions as to the Commencement of Leases and Demises on which the Declaration is and the Dates and precise Times of Entry and Ouster deserve well to be considered not only as so many curious Points of Law therein argued of which it 's not to be thought a general Lawyer would be ignorant but because in Inferiour Courts the old way of delivering Declarations is and must be used I shall therefore in the first place cite some of the principal Cases touching the manner of declaring in former times as to the Dates and Commencement of Demises c. and then come to those Considerations and Rules which are of present Use both as to Delivery Entry Forms and the like in which many Practisers may not be well informed and which are founded upon late Resolutions But first I shall shew how Declarations are to be laid in respect of the Matter and Things for which the Ejectment is brought concerning which the Cases in our Books are very frequent and very useful to be known Of what things an Ejectione Firme may be brought and what not Ejectment lies not de una demo because it may be a Dowe-house or Dwelling-house De Doâ—â—â— but Cro. Jac. 654. in Royston's Case contra that it lies de domo as well as waste de domibus but it lies de domo vocat ' Holts 2 Roll. Rep. 487 482. Warren's Case Cr. Jac. vid. in Pasch 1650. Fry and Pooly Hard. 76. Ejectment lies not de uno tenemento De Tenemento Ejectment was brought of an House and the Moiety of a Tenement it lies not for the Moiety of a Tenement Verdict was in this Case given for the Plaintiff and intire Damages Where the Plaintiff may aid himself by release of part The Plaintiff my well release his Damages as to the Tenement and take his Judgment for the House and then it shall not be Error 2 Bulst 28. Rothowick and Chappell Ejectment lies de uno Burgo De Burgo Hardr. 123. Danver ' s Case Ejectment de uno cubiculo De Cubicule is good as it was laid it was unius Cubiculi per nomen unius Cubiculi being in such an House in the middle Story of the said House The word Cubiculum is a more apt word than Camera Ejectment de una Rooma it was said had been adjudged good in B. R. So a Praecipe lies of an Upper-Chamber 3 Leon. p. 210. 2 Rolls Rep. 48. Ejectment de uno repositorio De Repositorio Judgment was reversed because it was uncertain it not being expounded in English it was intended a Ware-house W. Jones 454. Sprig's Case Cro. Car. 551. mesme Case It is not formal
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
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
difference was taken Per Cur ' By intendment and Construction of Law Demand of a part without shewing into how many parts divided when any parts are demanded without shewing in how many parts the whole is divided that there remains but one part not divided as if two parts are demanded there remains a third part and when three parts are divided there remains a fourth part But if any demand be of other parts in other Form there he ought to shew the same specially as if one demands three parts of five parts or four parts of six c. 13 Rep. 58. Declaration in Ejectment is Quod cum such an one dimisit Declaration in Ejectment with Quod cum is good not so in Trespass it 's good here because he cannot have the Action without a Lease but in Trespass as Assault and Battery c. it is not so And Dodderidge took this difference Where the thing on which the Action is brought hath continuance and where the Action is brought for a thing done and past In Ejectione Firme there the Lease hath still Continuance and there such a Declaration with a Quod cum is good because it is in the Affirmative but where the thing is past as Battery it ought not to be with a Quod cum 2 Bulstr 214. Sherland's Case As for the manner of declaring in respect of the thing demised vid. supra titulo Of what things an Ejectment lies To which I shall add one Case in the Exchequer Ejectment for so many Acres of Meadow and so many Acres of Pasture on Non culp ' the Jury find a Demise de Herbagio Pannagio of so many Acres De Herbagio Per Cur ' by the same Reason that an Ejectment lies of a Lease of Herbage by the same Reason the Plaintiff ought to declare accordingly and Herbage does not include all the Profits of the Soil Herbage does not include all the Profits of thd Soil but only part of it Hardr. 330. Wheeler's Case in Scacario The Form of a Declaration from a Parson of Rectory and Tenements in B. R. with an Averment of the Parson's Life 1 Rep. 149. Chedington's Case The Form of a Declaration in Ejectment in the Common Pleas. Mich. 16 Car. 2. Tempest Midd ss A. B. nuper de London Gen attachiat fuit ad respondend W. I. de plito quare vi armis unum Messuagium unum Gardinum decem acras terre tres acras prati quatuor acras pasture cum pertinentiis in H. que S. W. vid eidem W. dimisit ad terminum qui noudum preteriit intravit ipsum a firma sua predict ejecic alia enormia ei intulit ad grave damuum ipsius W. contra pacem Dom Regis nunc c. Et unde idem W. p I. S. Attornat suum queritur qd cum predict S. primo die Octobris Anno Regni Dom Regis nunc quinto decimo apud H. predict dimisit prefat W. Tenementa predicta cum pertin habend eid W. assignat luis a Festo Sancti Michaelis Archangeli tunc ultimo preterito usque finem terminum quinque annorum extunc ê“xime sequen plenarie complend finiend virtute cujus dimissionis idem W. in Tenementa predicta intravit fuit inde possessionat Et sic inde possessionat existen predict A. postea scilicet eod primo die Octobris Anno Regni dict Dom Regis quinto decimo supradicto vi armis c. in Tenementa pÌ„dicta cum pertin que pÌ„dict S. pÌ„fat W. in forma pÌ„dicta dimisit ad terminum pÌ„rict qui nondum preteriit intravit ipsum a firma sua pÌ„dicta ejecit ac alia enormia c. ad grave damnum c. contra pacem c. On. de dicit quod deteriorat est damnum het ad valentiam decem Librarum inde ê“duc Sectam Et pÌ„dict A. p G. I. Attornat suum ven defend vim injuriam quandque c. I. Lo. usque Octab Hillarij In the King 's Bench. TH. queritur de Iacobo W. Wart ss in custod Marr Marese Dom Regis coram ipso Rege existen ê“ eo videst quod cum H. M. Gen ultimo die Ianuarij Anno Regni Dom nostri Caroli secundi nunc Regis Anglie c. vicesimo apud B. in Com predict dimisisset concessisset ad firmam tradidisset pÌ„fato T. unum Messuagium duas Aâ—ras Pasture cum pertiu scituat jacen existen in B. pÌ„dice habend tenend renementa pÌ„dicta cum pertin prefato T. assignat luis a vicesimo quinto die Decembris tunc ult pÌ„teris usque plenum finem terminum quinque annorum extunc ê“xime sequen plenâ—rÌ„ finiend complend virtute cujus quidem dimissionis idem T. in tenementa pÌ„dicta cum pÌ„tin intravit fuit inde possessionat quousque pÌ„dict Iacobus postea scilt eodem ultimo die Ianuarij anno Regni dict Dom Regis nunc vicesimo supradict vi armis c. in tenementa pÌ„dicta cum pertinen in super possessionem ipsius T. inde intravit ipsum T. a possessione sua predict termino suo pÌ„dict inde nondum finit ejecit expulit amovit ipsumque T. a possessione sua pÌ„dict extratenuit adhuc extratenet alia enormia ei intulit contra pacem dict Dom Regis nunc ad damnum ipsius T. 20 l. Et inde ê“due Sectam c. In the Office of Pleas in the Exchequer A. B. Derb ss debitor Dom Regis nunc venit coram Baronibus hujus Scacarij duodecimo die Februarij hoc Termino p C. D. Attorn suum queritur p Billam versus E. F. pÌ„sent hic in Curia eodem die de plito Transgressionis Ejectionis Firme pro eo videlt qd cum quidam I. B. secundo die Feb Anno Regni dict DonÌ„i Regis nunc vicesimo primo apud c. ê“ut supra in B. R. ad vamnum ipsius A. decem Librarum Quo minus c. Et inde producit Sectam c. A Copy of the Declaration you must leave with the Occupier of the House and Land with this or the like Indorsement JAmes B. yon may perceive that I am sued for the Messuage and Lands within mentioned being in your Possession these are therefore to desire you to defend your Title or else I shall suffer Judgment to be entred by default Or thus UNless the Tenant in Possession or they under whom he claims do next Trinity Term appear to this Declaration and make him or themselves Defendants thereunto and by Rule of Court confess the Lease Entry and Ejectment and insist only upon the Title at the Trial the Defendant in this Declaration will confess Judgment and Possession will be delivered accordingly to the Plaintiff and you turned out of Possession Your Friend J. D. To A. B. Tenant in Possession of the Premisses within mentioned To this
the Tenant may appear by his Attorney and consent to a Rule with the Plaintiff's Attorney to make himself Defendant in the room of the casual Ejector and to confess Lease Entry and Ouster and at the Trial to stand upon the Title only or in default thereof Judgment will be entred against the casual Ejector If the Tenant in Possession do not appear in due time and enter into a Rule as is aforesaid then upon Affidavit made of the Service thereof and notice given him to appear the Court upon Motion will order Judgment to be entred against the casual Ejector for if the Defendant plead nothing to this Action No Judgment against the casual Ejector but by motion of the Court. but let it pass by Nihil dicit the Judgment cannot be had upon a common Rule as in Actions of Debt and such like but by Motion of the Court because it is to alter Possession After the Declaration delivered What is to be done after the Declaration delivered the Person whose Interest is concerned ought to retain an Attorney who is to give his Client's Name to the Plaintiff's Attorney that so he may be made Defendant instead of the casual Ejector and then a Rule is to be entred by Consent as follows Robinson Pas 15 Car. 2. Regis D. versus M. in Ejectione Firme de terris tenementis in H. in Com' M. ex dimissione E. P. ORdinat est p Curiam ex assensu I. H. Attornat querÌ„ I. R. Attornat ê“ T. W. de W. in Com E. pÌ„dict Yeom quod idem T. admittatur defendens qui indilate comparebit p Attorn suum pÌ„dict recipiet narrationem plitabit adinde generalem exitum hoc Termino ad TriacÌ„onem superinde habend idem T. comparebit in ê“pria persona sua aut p ejus Concilium vel Attornat Et cognoscet dimissionem intrationem actualem expulsionem vel quod in defectu inde intretur judicium versus Def. G. M. casualem Ejectorem sed parcatur ulterior prosecutio versus cum quousque pÌ„dict T. in aliquo pÌ„missorum defalt fccerit Et ex consimili assensu ulterius ordinat est per Cur quod pÌ„dict T. nullum capiet advantagium versus querent ê“ ejus non ê“secutione super Triatione occasionat p hujusmodi defaltam sed quod pÌ„dict T. solvet querenti custagia ProthonotarÌ„ ê“ inde taxand Et ulterius ordinat est quod dimissor querentis sit onerabilis cum solutione custagiorum defendent per Cur aliquo modo taxand vel adjudicand The like in B. R. Die Lune prox ' post Crast ' Ascensionis Domini 23 Car. 2. Regis ORdinatum est ex assensu ambarum partium eorum Attornat qd W. H. qui clamat titulum Messuagio in questione fiat Def. compebit inldiate ad Sect querÌ„ impon commune Ballium recipiet narrationem in plito Transgressionis Ejectionis Firme plitabit adinde non culp super triatione exitus cogn dimission intration actualem Ejectionem stabit super titulum tantum alit judicium intretur per defaltÌ„ versus modo querent Et si pdict W. H. super triatione exitus illius non cognose dimission intracÌ„on actual eject ' p qd quer ê“sequi ulterius non potest quod tunc nuâ— misÌ„ sive custagÌ„ super tali non prosÌ„ adjudicentur Et ulterius ordinat est qd si veredict redditum fuerit pÌ„dict W. H. vel predict quet non prosÌ„ foret ê“pter aliquam aliam causam ê“ qm non cognost dimission intracÌ„on actualem ejectionem pÌ„dicy quod tunc le Aessor quet solveret talia custagÌ„ W. H. Def. qualia p Cut adjudicata fuerint p CurÌ„ ' An Affidavit in Ejectment to move for Judgment against the casual Ejector Inter A. S. Quer ' B. C. Def. ' de Terris Tenementis in R. in Com' H. ex dimissione J. H. T. S. maketh Oath That he this Deponent on Thursday the day of last past did deliver unto J. D. Tenant in Possession of the Premisses in question a true Copy of the annexed Declaration with an Indorsement or Superscription thereupon to this effect viz. J. D. You may perceive by this Declaration that I am sued as Casual Ejector for the Land and Tenements within specified in your Possession whereunto I claim no Title I do therefore hereby give you timely Notice that unless you appear and defend your Title this next Term I shall suffer Judgment to pass against me by Default whereby you will be turned out of Possession Your Loving Friend C. R. Dec. 12. 1679. Which said Indorsement or Superscription this Deponent did then read to the said T. D. and acquainted him with the Contents thereof Note It is good Service to deliver the Copy to the Wife or to the menial Servant of the Tenant in Possession If to the Wife thus viz. I did deliver to Ann the Wife or if to the Servant to R. W. the hired Servant of J. D. and desired her to acquaint her Husband therewith or him his Master therewith If there be two Tenants then say I did deliver one Copy of the annexed Declaration to A. R. Tenant in Possession of Parcel of the Premisses in question and another Copy thereof to C. D. Tenant in Possession of the Residue of the Premisses in question upon which said several Copies was subscribed or indorsed to this effect c. Which said several Indorsements he the said Deponent did read to the said several Tenants c. CHAP. VIII Of Pleadings in Ejectment What shall be a good Plea in Abatement in this Action Entry of the Plaintiff haenging the Writ Entry after Verdict and before the day in Bank After Imparlance no Pleading in Abatement and why Abate because he 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 Five Ports to be made Ancient Demesne a good Plea in Ejectment 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 Assises is reasonable the Consequence of a Demurrer to this Plea Release from one of the Plaintiffs in Writ of Error whom it shall bar Accord with Satisfaction pleaded in Ejectment Aid prier and why the Defendant shall not have Aid of the King aliter of a common Person But 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 THE General Issue in Ejectione Firme is now setled by Rule of Court to be Not guilty tho' formerly the Defendant might have pleaded Non ejecit or any other Title and therefore tho' this Chap. 2. may seem needless because by
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 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
before the Verdict is imperfect and otherwise the Plaintiff must have had Judgment upon the prior Possession In Craw and Ramsey's Case 2 Ventr 3. the Jury find that Patrick who was the Issue born in England entred and was seised but that he Anno Dom. 1651. did bargain and sell virtute cujus the Bargainees were seised prout Lex postulat and then bargained and sold it 1662. Wild and Archer were of Opinion That the Plaintiff could not have Judgment upon that Verdict for that they their Bargainees seised prout Lex postulat but they find the Defendant entred and so the primer Possession is in him which is a good Title against the Plaintiff for whom none is found it being not found that Patrick entred But Tirrel and Vaughan said It shall be intended that Patrick entred for a Verdict that leaves all the Matter at large to the Judgment of the Court will be taken sometimes by Intendment Intendment as well as where the Jury conclude upon a Special Point Car. Jac. 64. The Jury find an Incumbent resigned it shall be intended the Resignation was accepted So Hob. 262. And where they find the Bargainees seised Prout Lex postulat prout Lex postulat that doth not leave it doubtful whether seised or not seised but whether by Right or by Wrong If the Defendant hath primer Possession first he shall not have Judgment if no other Title be found for him for Seism must betaken as found expresly neither do they find any other in Possession yet however if the Defendant had primer Possession he shall not have Judgment if no other Title be found for him as in Cr. Car. 57. Hern and Allen The Husband makes a Feoffment in Fee with Warranty and takes back an Estate to him and his Wife for their Lives c. The Husband dies the Wife enters the Question was if the Entry of the Wife shall remit to the Estate-Tail but the Jury find the Husband was seifed prout Lex postulat but no Entry by him and no Remitter can be wrought without an Entry 2 Bulstr. 31 32. Ejectione Firme of the Rectory of M. of the Lease of Henry Fowler and that the Lessor was presented by the Lord Windsor upon Deprivation of A. L. Upon Evidence it appeared That the Advowson was the Inheritance of the Lord Windsor who granted the next Avoidance thereof to Dr. G. The Church became void Fowler Father of Henry by Simony procures Henry to be presented who was instituted and inducted and so the King presented A. L. who was afterwards deprived But ten days before Richard Fowler procures a Grant of the next Avoidance to J. S. and procures J. S. to present Henry Fowler Per Cur ' his Presentation is meerly void he being disabled ever after to take the same place and every one who is in Possession hath good Title against him and his Lessee so as the Plaintiff cannot maintain this Action Cro. Jac. 533. Booth and Rich. Potter If the Plaintif hath not Title according to his Declaration he cannot recover whether the Defendant hath Title or not and wheiher he be a Disseissor or not as where an Infant makes a Lease at Will who enters and ousts the Plaintiff and the Plaintiff brings Ejectment Vid. 1 Leon. 211. Cotton's Case Ejectione Firme was brought upon a Lease made by Roan of the Rectory of c. Special Verdict found Glover put in a Caveat to the Bishop in the Life of the Incumbent the Incumbent dies and afterwards by the Presentation of Mantle Morgan was instituted And after Wingfeild presents Glover who was instituted and inducted and after the King presents his Clerk Roan who was inducted and after Morgan was inducted and after Roan enters and lets to the Plaintiff who upon the Entry of the Defendant brought his Action Now Morgan was instituted and after Glover was inducted which was void but by that he had the Possession and afterwards Roan the Presentee of the King is inducted and after Morgan is inducted and after Roan enters and Glover enters upon him The Question was Who had better Possession Roan or Glover Per tot ' Cur ' Roan had the better Possession if it be admitted that the King had not any Title to present for tho' Glover had the first Possession yet his Possession was defeated by the Induction of Morgan who had the true Right and then when Roan enters upon him he had the first Possession and better Right against any other praeter Morgan and by Consequence the Action will lie by the Lessee of Roan against Glover Moor 191. Hiâ—thorn and Glover On Special Verdict it was found that it was Copyhold parcel of the Manor of S. demisable for three Lives and that by the Custom of the Manor the first Name in the Copy should enjoy it during his Life sic successive and that the Lord A. granted it by Copy to Alice W. R. W. and J. W. her Sons for three Lives that R. W. made Waste in cutting down Timber Trees Lord A. seised it and granted it by Copy to the Lessor of the Plaintiff for his Life and after licensed him to let Tenements infra script ' in quibus c. for five years if J. the Lessor of the Plaintiff so long lived that he let to the Plaintiff for three years who entred and the Defendant ousted him Et si super totam c. per Cur ' inasmuch as it is a good Lease made to the Plaintiff and no Title at all appears for the Defendant but that he entred upon the Plaintiff's Possession and not by Command of any who had Right altho' there were some matter between the Plaintiff and the first Copyholder yet Judgment ought to be pro Quer ' Cro. Jac. 436. Worledge and Benbury So in Powel and Goodard's Case Tr. 21 Car. 2. B. R. in Ejectment Special Verdict finds W. G. seised in Fee and devised that P. and J. G. should be Trustees and take the Profits till the full Age of H. G. whom he makes his Heir W. G. doth authorise his Feoffees to sell so much of his Lands for payment of Debts and Funeral Charges as in their discretions shall seem meet The Feoffees for 80 l. Lease for 99 years to begin after the Death of R. G. and his Wife to three one whereof is Lessor of the Plaintiff it was found at the time of the Sale that all the Debts were paid Per Cur ' the Fee being given away from the Heir of the Devisor Priority of Title is a sufficient possession Priority a sufficient Title unless some Title be found for the Defendant and primer Possession is good where neither Party hath Title and in this Case the Lease was adjudged void the Trustees not being enabled to sell farther than to satisfie Debts In Wallis's Case Where primer Possession makes a Disseisin Stiles Rep. 291. Special Verdict was on a Copyhold-custom the primer Possession will make a Disseisin if
the Custom be not well found it was not found in that Case that the Land was demisable according to the Will of the Lord and so it may be Free-Land and the Custom did not extend to it nor is it found that the Parties to whom the Lettor of Attorney was made to surrender were customary Tenants and then the primer Possession by the Defendant will make a Disseisin and Judgment pro Quer ' In Ejectment prior Possession is a good Title against the King's Presentation In Ejectment prior Possession a good Title against the King's Presentation not so in a Quare Impedit but not so in a Quare Impedit for there the Incumbent ought altho' Defendant to make a Title against the King's Presentation without Title as is the Book 7 H. 4. 31. but if the Incumbent be in by Entry of his own Head without Presentation it is not sufficient in either 1 Keb. 503. Brown and Spencer 3. Si constare poterit that it is the same Land it is good The Special Verdict is good si constare poterit that it is the same place and the same Land in the Declaration mentioned although it be not found expresly and although the Jury find not that it is the same Land in the Declaration mentioned yet if they find the Entry and Ejectment according to the Declaration it is sufficient and therefore the Mistake of a Letter or Addition of a Word shall not hurt the Verdict si constare poterit c. Siderf p. 27. Hoare and Dix 4. The Special Conclusion of a Special Verdict shall aid the Imperfections of it In many Cases the special Conclusion of a Special Verdict shall aid the Imperfections of it If the Jury find a Special Verdict and refer the Law upon that special Matter to the Court although they do not find any Title for the Defendant which is a collateral thing to the Point which they refer to the Court yet the Verdict is good enough for all other things shall be intended except this which is referred to the Court. As in Ejectment if the Plaintiff declare upon a Lease made by A. and the Jury find a Special Verdict and matter in Law upon a Power of Revocation of Uses by an Indenture and Limitation of new Uses and then a Lease for years made to the Plaintiff by the Lessor in the Declaration and another in which there is a perfect Variance but they conclude the Verdict and refer to the Court whether a Grant of a new Estate found in the Verdict be a Revocation of the first Indenture or not The special Conclusion shall aid the Verdict so that the Court cannot take notice of the variance between the Lease in the Declaration and the Verdict because the doubt touching the Revocation is only referred to the Court. And although they refer to the Court whether this be a Revocation of the first Indenture and not of the former Uses or Limitation of new Uses as it ought to be yet in a Verdict this is good for their intention appears Intent But where the Jury find specially and furthermore conclude against Law Where the Verdict is good and the Conclusion ill Diversity between a geneneral Conclusion and a special Conclusion the Verdict is good and the Conclusion is ill and the Court will give Judgment upon the special Matter without having regard to the Conclusion of the Jury 5. Rep. 97. Litt. Rep. 135. 2 Keb. 362 412. 11 Rep. 10. Moor 105 269. So note this Diversity between a special Conclusion of the Jury and Reference to the Court and a general Conclusion and Reference to the Court A Special Verdict may make the Declaration good A precise Verdict may make the Declaration good which otherwise would be ill as the Declaration is of Lands in Sutton Coefeild and the Verdict finds the Lands in Sutton Colefeild and the Deed is of Lands in parva Sutton infra Dominium de Sutton Colefeild so neither the Verdict nor Deed agree with the Declaration for the Vill where the Lands lie therefore no Judgment ought to be given But per Cur ' the Verdict finding Seisin de infra script ' messuag ' that is quasi an express Averment and finding that Sutton Coefoild and Sutton Colefeild parva Sutton infra Dominium Sutton Colefeild are all one and that they be all in one Parish and this being in a Verdict when the Jury found Quod dedit tenementa infra script ' by Name in the Deed shall be intended all one So it s aided by the finding of the Jury who find expresly that the Bishop dedit Tenementa infra Script Cr. Jac. 175. Ward and Walthow Yelv. p. 101. Mesme Case 5. The Judges are not bound by the conclusion of the Jury as in Ejectment on a void the Jury find Lease Lease that if the Entry of the Daughter was not congeable the Defendant is Guilty Now the Judges are not bound by the conclusion of the Jury but may Judge according to Law as 10 Ed. 4. f. 70. Trespass was brought against the Lord for Distraining The Jury found for the Plaintiff But because the Statute of Marlbudge is non ideo puniatur Dominus c. The Court shall adjudge for the Defendant So is the Rule in Plowd Com. 114. b. when the Verdict finds the fact but concludes upon it contrary to Law the Court shall reject the conclusion as in Amy Townsend's Case The Jury find precisely that the Wife was remitted which was contrary to Law for their Office is to judge of matters of Fact and not what the Law is So if the Jury collect the contents of a Deed and also find the Deed in haec verba The Court is not to Judge upon their Collection but upno the Deed it self Moor p. 105. Lane and Cooper And yet the Court is sometimes bound by the conclusion of the Jury as in Ejectione Firme of one Acre The Jury find the Defendant Guilty of one Moiety and a Special Verdict for the residue and conclude if the Court shall find him Guilty of all then c. The Plaintiff cannot have Judgment upon this for a Moiety if the Court shall not adjudge him Guilty of the whole for the Special conclusion cited 1 Rolls Rep. 429. 1. Verdict to be taken according to Intent Special Verdict shall be taken according to Intent and the Court must make no more doubts than the Jury does the finding matter of Fact being only the Jurors Office as 5 Rep. Goodales's Case The doubt was whether the payment of 100 l. with agreement to have some part of it back again were sufficient upon a Condition to defeat the Estate of a Stranger The Court regarded not that there was no Title found for the Party that made the Entry whereupon the Action was brought Ejectione Firme was brought by G. against W. upon Not guilty the Jury concluded their doubt upon performance of a Condition When the
that Exception seemed not valid Cr. El. 642. Hemsley and Price So in 3 Rep. Sir George Brown's Case Anthony is found Son but not Heir and yet without his being Heir the Plaintiff had no Title And yet in Cymbal and Sand's Case Cro. Car. 391. Gimlet and Sands the Court seemed to be of Opinion That tho' the Jury found that Humfrey had Issue by Hebell his Wife John unicum filium suum that not finding that he was Heir it was in case of his being Heir to a Warranty collateral was not good for he might have elder Sons by another Venter or there might be an Attainder or the Warranty might be discharged or released io his Life-time 2 Rolls Abr. 701. mesme Case The Jury found a Special Verdict on a Will in which they found A. had Issue two Sons B. and C. and do not find which of them was the elder and which the younger which is material in the Case This Verdict is not good for tho' B. is first named yet it doth not appear by this that he is the eldest Son M. 20 Jac. B. R. Peryn and Pearse Uncertainty as to part of a House The Defendant pleads Not guilty Part of an House the Jury find him not guilty for part and guilty de tanto unius Messuagij in occupatione c. quantum stat super Ripam Per Cur ' the Verdict is insufficient for the Uncertainty for tho' the Certainty may appear to the Jury yet that is not enough the Court ought to give Judgment oportet quod res deducatur in judicium The Court must be informed of the Certainty and it ought to appear to them Had they found him guilty of a Room it had been good So if he had been found guilty of a third part for of them the Law takes notice And an Ejectione Firme was brought for the Gate-house at Westminster and the Jury found the Defendant guilty for so much as is between such a Room and such a Room and it was adjudged good Guilty of a Room is good Marsh Rep. 47. Juxon and Andrews As to Certainty of Acres Ejectione Firme was brought of 400 Acres of Land As to Acres and the Jury find the Defendant quoad all besides three Acres parcel tenementorum praedictorum Not guilty Quoad c. and quoad the three Acres they find special matter and that G. A. the Lessor let the aforesaid three Acres to the Plaintiff and that he was possessed and that the Defendant ejected him out of the three Acres Parcel parcel ' tenementorum praedictorum and they did not find the Ejectment of the aforesaid three Acres c. and it may be the Ejectment was of other three Acres and for this Cause per totam Curiam held ill Cr. El. 642. Hemsley and Price Ejectment of 5 Acres if the Jury find the Defendant guilty in 8 Perches de terre parcel ' tenementorum praedictorum it 's a void Verdict because uncertain and no Execution can be made of Pieces 2 Rolls Abr. 694. Pawlet and Dr. Redman And this is the Difference between Trespass and Ejectment The Plaintiff declares of Trespass in one Acre in D. and abutts it East West North and South Upon Not guilty the Jury finds the Defendant guilty in dimidio Acrae infra script ' the Plaintiff shall have Judgment and so if they had found but one Foot of the Acre And it sufficeth to be found in one Moiety of the Acre bounded in this Action where Damages are only to be recovered But if it were in Ejectment the Verdict had been ill It must be certain in what part the Plaintiff must have his Hab. fac possess aliter in Trespass for it is not certain in what part the Plaintiff shall have his Habere fac ' possessionem Yelv. p. 114. Winckworth and Man In Ejectione Firme the Plaintiff declares of a Messuage 3000 Acres of Land 3000 Acres of Pasture in D. per nomina of the Manor of Monkall and 5 Closes per nomina c. The Jury give a Special Verdict quoad four Closes of Pasture containing by Estimation 2000 Acres of Pasture that the Defendant was not guilty quoad residuum they find the Matter in Law This Verdict is imperfect in all for when the Jury found the Defendant was not guilty of four Closes of Pasture containing by Estimation 2000 Acres of Pasture Quoad residuum must be certain it is uncertain and doth not appear of how much they acquit him and then when they find quoad residuum for the special Matter it is uncertain what that Residue is so there cannot be any Judgment given And a Venire fac ' de novo was awarded Cro. Jac ' 114. Woolmer and Caston In Ejectione Firme de septem Messuagiit sive tenementis De Messuagiis sive Tenementis is ill and the Verdict helps it not and Verdict pro Quer ' it's ill for the Uncertainty and the Verdict doth not help it And Hales refused to let the Jury find for the Plaintiff for the Messuages and Non culp ' for the Tenements But per Twisden had it been de uno Messuagio sive Tenemento vocat ' The Black Swan it had been good because the last part makes it certain Sid. 195. 2 Keb. 80. Cro. El. 186. On Special Verdict in Ejectment the Case was As to Acres and Parishes the Declaration was of several Messuages in the several Parishes of St. Michael St. James St. Peter and St. Paul and that part of the Premisses lie in the Parish of St. Peter and St. Paul and that there is no Parish called the Parish of St. Peter nor none called the Parish of St. Paul Per Cur ' the Copulative Et shall be referred to that which is real and hath existence ut res magis valeat not to make St. Peter's one Parish and St. Paul another but to make them both one Parish and the Words several Parishes are supplied by the Parishes before mentioned as 6 Ed. 3. Praecipe of 10 Acres in A. B. and C. there the Lands must lie in every one of the Vills but if the Praecipe were de Manerio de decem Acris in A. B. and C. there it would be well enough tho' the Manor lay elsewhere provided that ten Acres lay within the Vills aforesaid for then the last words are satisfied by the ten Acres Hardr. 1. 330. Ingleton and Wakeman Yet in Thomas and Kenn's Case P. 38 El. B. R. it 's said in Dyer ult Edit in margine 34. b. Ejectione Firme upon Title of Land of Sir Hugh Portman the Count was of an hundred Acres in D. and S. and Non culp ' pleaded the Jury found the Defendant ejected him of ten Acres only and shews not them in Certain and adjudged a good Verdict and the Plaintiff had Judgment It 's a Rule laid down Where ever but one Acre 〈◊〉 found certain â—ne may release â—ll the rest 1 Rolls 784. Rhethorick
Ejectione Firme of 40 Acres of Land and recovers 30 and not the Residue Upon the Writ of Execution the Sheriff may deliver to him any viz. Three or more of the Acres in the name of the whole How the Sheriff must deliver it without setting out the Land recovered by Metes and Bounds tho' the Plaintiff had not recovered all the Acres whereof he brought the Action and whereof he had supposed the Defendant Tenant 1 Rolls Abr. 886. Now How the Sheriff is to esteem the Acres if a Writ of Execution go to the Sheriff to put a Man in Possession of 20 Acres of Land the Sheriff ought to give him 20 Acres in quantity according to the usage of the Country and not according to the usage of the Statute And if a Man recovers divers Messuages the Sheriff upon the Writ of Execution may make Execution of one in the name of all without going to every one in particular Where delivery of one Messuage in the name of all by the Sheriff is sufficient or not but if in such Case the Messuages be in the Possession of several Men he ought to go to every House particularly and of them to deliver Seisin and the delivery of Seisin of one in the name of all is not sufficient Floid and Bethel When many Acres are in demand and but part recovered and the Habere fac ' Possessionem comes to the Sheriff to deliver Execution of the Land recovered Where the Sheriff is to give all the Acres in particular it does not suffice there to give one Acre in the name of the whole recovered but he ought to set forth all the Acres particularly so that the Recover or may have benefit of the Judgment in certainty and the several profits without interruption Pal. Rep. 289. Molinex and Fulyam Sometime a Rule of Court is to give Possession If one recover Rent or Common How the Sheriff is to give Possession of Rent or Common a Writ Issues out to the Sheriff to put him in Possession and the Sheriff comes upon the Land and delivers him Seisin of the Rent or Common by parol this is well done 22 Ass 84. Hab. fac ' Possession ' Habere facias Possessionem good without return if execute is good without return But the Court may command the Sheriff to return it 1 Rolls Rep. 77. Note How Possession to be given of House Land of Rent The Sheriff in Cases where Land is recovered is to put the party in Possession and Seisin by a Twig Clod c. of an House by the Key c. of Rent by Corn or Grass growing on the Land out of which the Rent Issues 6 Rep. 52. Error was of a Judgment in the Kings-Bench in Ireland and Judgment for the Defendant was reversed and Judgment given for the Plaintiff quod recuperet terminum suum praed Habere fac Possessionem how awarded into Ireland It was moved how Habere fac ' possessionem should be awarded And it was resolved That there should be a Writ directed to the Chief Justice in Ireland to Reverse that Judgment commanding him to award Execution Cr. Car. 511. Mulcarry and Eyres In what Cases a new Habere fac ' Possessionem shall be granted or not and of the Sheriffs demeanor therein Nota pro Regula That after Habere fac ' possessionem executed be it by the Sheriff or voluntary delivery of Possession if the Party be turned out again by the Defendants means Where the Plaintiff shall have a new Habere facias Possessionem he may have a new Habere fac ' possessionem on motion in Court and an Attachment against him But if after quiet Possession others enter he must have a new Action or Restitution else by this means by practice the Plaintiff may turn out any of his after Lessees on Non-payment of Rent Had actual possession been by Agreement of the Parites or by Delivery of the Sheriff the Party can never after have a Habere fac ' possessionem But if there be agreement to deliver Possession in futuro if it be denied a new Writ may be had But after the year there must be a new motion for it in Court With this agrees Pearson and Tavernor's Case if one recovers in Ejectment upon which the Recoveror was put in Possession Per Habere fac ' possession and after the Defendant ousts him again if the Writ was never retorned because then it appears nor that the Plaintiff was ever out of Possession a new Writ shall be granted 1 Keb. 779. Ratliff and Tate 1 Keb. 785. Lovelace's Case 1 Rolls Rep. 353. Peirson and Tavernor's Case It is expresly resolved in Dame Molineux and Falgam's Case Palmer p. 289. If Haber e facias possessionem go to the Sheriff When the Writ of Hab. fac ' Possessionem is returned and filed the Court may not award a new Habere fac ' Possessionem and why and he returned Execution of the Writ and the Writ is filed there the Court may not award a new Habere fac ' possessionem but before they may because in the first case it appears the Party had Execution The Council prayed That the Defendant might file an Habere facere possessionem to the intent that no new one may be taken out or that that was taken out should not be filed after the return of it which the Court refused for the Party hath election to return it or not and may renew it at pleasure till an effectual Execution be had albeit the Party had Execution yet if there were any suddain expulsion of him he shall not be Estopt 2 Keb. 245. Underhil and Devereux Also New Habere facias Possessionem if the Sheriff give Seisin but of part he may have new Habere fac ' possessionem for the rest So in Stile 's Case 2 Browl. 216. Stiles upon a Judgment in Ejectione Firme was put into Possession by the Sheriff by Habere fac ' possessionem and after the Defendants enters again and the Writ was returned but not Filed It is at the election of the Sheriff whether he will return it or not Per Cur. He may not have a new Writ of Execution but is put to his new Action and the Filing of the Writ is not material for it is in the Election of the Sheriff if he will return it or not But if Execution had not been fully made as in case of persons hiding themselves in the upper Lofts and after the Sheriff was gone they outed those that were in Possession in this Case a new Writ of Execution was awarded But by the Chief Justice if the Sheriff put a Man in Possession and after the other which was put out enter forthwith in this Case the Court may award an Attachment against him for contempt against the Court and so an Attachment was awarded upon Affidavit in Gallop's Case 2 Brownl 253. To this purpose is Upton and Well's Case 1
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