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
is more cause to stay Judgment as to Damages and Costs because the Issue hath been fairly tried and the Defendants have confessed that the Plaintiff was in Possession and that the Defendants did eject him now if his Term was not commenced but his Possession tortious yet he is not to be turned out by a Stranger that hath no Title as the Defendants were the Jury having found against them and the Damages are for the entring upon our Possession and ejecting us But the Court said It could not be amended and Mr. Levet brought a new Trial and recovered Declarations when amendable or not In Ejectment where the Title is material Declaration amended after Plea without paying Costs the Plaintiff amended his Declaration after Plea but while all was in Paper in the date of his Action without Costs paying 1 Keb. 14. After Verdict and Judgment the Declaration cannot be amended After Verdict and Judgment no Amendment of a Declaration for that might attaint the Jury As in Ejectment of the Rectory of H. and other Tenants virtute cujus intravit in tenementa praedicta Verdict and Judgment de Rectoria Tenementis praedict ' Aliter in Judgment and Acts of the Court. it cannot be amended but on such Omission in Judgment or Acts of the Court it were amendable but not of the Declaration But in this case the Court conceived it well enough Tenements include a Rectory and that the word Tenements includes Rectory whether there be Glebe or not but not so of a Mannor Hill 25 and 26 Car. 2. Bale's Case If the Plaintiff in Ejectment declare of an House lying in two Parishes Declaration of an House lying in two Parishes and the House lies in one it 's good if the House do lie in either of the Parishes and do not lie in both of them yet the Declaration is good for there is certainty enough in it Pract. Reg. 110. It must be alledged in what Vill the Tenements are It must be alledged in what Vill the Tenements are the Plaintiff declares that P. C. by Indenture apud F. let unto him one House and twenty Acres of Land by the Name of all her Tenements in S. per Cur ' the Declaration is not good because it is not alledged in what Vill the Tenements are for the naming of the Vill in the Pernomen was not material and so Cr. El. 822. Gray and Chapman The Plaintiff declares of a Lease of one Messuage ten Acres of Land Where the Pernomen is not good twenty Acres of Meadow twenty of Pasture by the name of one Messuage ten Acres Prat. be it more or less after Verdict a Nil cap. per Billam was entred For upon the matter by the Plaintiff disclosed in his own Declaration he cannot have Execution of the Quantity found by the Jury for in the Lease there is not but ten Acres demised and these words in Judgment of Law cannot be extended to thirty or forty Acres and the rather because the Land demanded by the Declaration is of another nature than that mentioned in the Pernomen for this goes only to the Meadow and the Declaration is to the arable and Pasture Yelv. p. 166. In this Action it was moved in Arrest of Judgment That the Plaintiff had declared of two Demises viz. that J. S. demised ten Acres of Land to him and that J. N. had demised ten other Acres of Land to him Habend for the Term of five Years c. and that he entred into the Premisses demised to him by J. S. and J. N. in forma praedicta After Verdict upon Not guilty for the Plaintiff it was objected That in one of the Demises there is no certain Term or Estate for the Habend ' can only be referred to the Demise of J. S. for that begins a new Sentence but per Cur ' the Habend ' shall be a good Limitation of both Demises for five Years and when it is shewed that the Plaintiff entred into the Premisses demised to him in forma praedicta Forma praedict ' how construed that is an Averment that all was demised to him for that it is forma praedicta 2 Ventr 2. W. and M. In Ejectment the Plaintiff need not count of the demise of more Acres than the Acres out of which he was ejected Declaration need not be of more Acres than he was ejected and a demise may be pleaded of any Parcel without mentioning the entire as if one demise to me two Acres for Term of Years and I am ejected out of one Acre by a Stranger Now I shall have Ejectione Firme and count that one Acre was demised to me without any mention of the other Acre 1 Saunders p. 208. Where one declares on a fictitious Lease to A. One fictitious Lease to A. and another to B. the same term the last is not good for three years and within the same Term declares of another fictitious Lease to B. of the same Lands the last is not good for Trespass for the mean Profits must be brought in the first Lessee's Name ut dicitur As to the Form Ejectment was against two Declaration against two expulit and the Declaration was intraverat expulit and it was amended Yelv. 223. Vi armis are left out in the Declaration The Omission of vi armis in the Declaration Cro. El. 340. Griffith and Williams's Case saith it is but matter of Form and it is helped after a Verdict but in Cro. Jac. 36. and Yelv. 223. in Odington and Darby's Case where vi armis was left out and Error was brought in the Exchequer-Chamber it was not suffered to be amended but Judgment was reversed So Godb. 286. and so in Sykes and Coke's Case the Want of vi armis is not helped by a Verdict but in Error in B. R. if upon diminution it be well certified the Court will amend it Godb. 286. 2 Bulstr. 35. Cr. Jac. 306. Yelv. 223. Odington and Darby 1 Keb. 164. In B. R. the Transcript of Trespass and Ejectment was de Placito Transgressionis Ejectionis omitting Firme it was amended And in B. R. it would be amended in the Record it self before Removal 1 Keb. 106. Exception was taken in Godb. The Omission of Extratenet in the Declaration 60 71. because the Plaintiff did not say in his Declaration Extratenet but per tot ' Cur ' those Words were not material for if the Defendant do put out the Plaintiff it is sufficient to maintain the Action So if it be à possessione sua ejecit instead of à firma sua ejecit it 's good for ejecit à possessione inde inde hath relation to the Farm Godb. 60 71. In Ejectione Firme the Writ and Declaration were of two parts of certain Lands in H. and saith not in two parts in three parts to be divided and yet it was good as well in the Declaration as the Writ and this
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
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
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
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
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
much there was in Land and how much in Pasture and the Judgment was reversed Cro. Car. 573. Martin and Nichols Observe Acres according to Statute-measure In Ejectione Firme or a Praecipe of 100 Acres this is according to Statute-measure but if one bargain and sell 100 Acres of Land to another that shall not be according to the Statute-measure but after the usual Account in the Country in Andrews Case cited in Ewer and Heydon's Case The Declaration was De duabus acris fundi Anglice Hop-ground That he was ejected è duabus Acris fundi Anglicè Hop-ground Per Rolls it is good in a Grant but not in Declarations and the Anglice here does not help it for the Anglicè is not to interpret a Latin Name by which it is called Stiles Rep. 202 203. Meers and French Ejectment lies de decem Acris Pisarum for in common Acceptance Ten Acres of Pease De decem acris Pisarum and Ten Acres of Land sowed with Pease is all one 1 Brownl 150. Ejectment of Three hundred Acres of Waste De 300 Acres of Waste inter alia c. per Cur ' Waste is uncertain and may comprehend Land of any Quality and the Sheriff will be at a Loss what Land to deliver and after the Plaintiff released the Waste and Damages and took Judgment of the Residue Hardr. 57. Hancock and Prynn Ejectment lies de prima Tonsura of the first Crop De prima Tensura Cro. Car. 362. Ward Ejectment lies of a Cole-mine De Cole-mine for it is a Profit well known Ejectment of Land and a Colepit in the same Land ruled to be good because it is in a personal Action aliter in a Real Action because it is his petitum 1 Rolls Rep. 55. Cro. Jac. 21. Harbotle and Placock It lies of a Boillary of Salt-water De un Boillary of Salt Siderf 161. Ejectment lies not de rivulo seu aquae cursu De Râ—vulo aquae cursu therefore Godbolt p. 157. n. 213. is not Law nor a Precipe lies of it and Livery and Seisin cannot be made of it for non moratur non est firma but is always fluctuant and Execution by habere fac ' possessionem cannot be made of it but the Action ought to be of so many Acres of Land aqua coopert but if the Land under the River or Place appertains not to the Plaintiff but the River only then upon Disturbance his Remedy is only by Action on the case upon any Diversion of it and not aliter Yelv. 143. Challoner and Thomas M. 6 Jac. Challoner and Moor. Cro. Car. 492. Herbert and Llanghlyn's Case Ejectione firme lies not de Profit apprender De Profit apprender and so not of a Common or Rent nor of a Pischary it must be terra aqua cooperta in such a River tho' the Court seemed doubtful of it in Mâ—llineux's Case which was Ejectment of an House and Lands in T. nec non de Libera Pischaria infra Rivulum de Trent in which Action Damages were entirely given De Libera Pischaria but to avoid the Question the Plaintiff released his Damages totally and his Action quoad the Pischary and had Judgment for the Residue Cro. Jac. 146. Molineux Ejectment was brought in Ireland of forty Messuages De 100 Acres of Bogg Five hundred Acres of Land an Hundred Acres of Bogg in the Villages and Territories of D. S. and V. Bogg is an usual Word and well known there and if it were not the Plaintiff may release his Demand as to that and have Judgment for the Residue Another Exception was because it was in Villis Territoriis In villis territeriis but per Cur ' it 's well enough and of the same Sense and if not it is but Surplusage as to the Territories De 50 Acres of Mountain in Ireland but Ejectment of 500 Acres of Mountain in Ireland is ill for it is not of one Nature but several as Turfs Pasture but a Precipe is good de Saliceto de Stagno de Dominio by the general Notice the Country hath of them where the Lands lie and of their Quality On Ejectment in Ireland Error was brought in B. R. here because he brought Ejectment of 40 Acres of Wood De 40 Acris bosci 40 Acris subbosci and 20 Acres of Under-wood and so one thing twice demanded because Underwood is a Species of Wood sed non allocatur because this does not appear to the Court and this shall not be alledged for Error but ought to be taken in Abatement of the Writ Cro. Car. 512. Mulcarry and Eyres 2 Roll. Rep. 166 189. Macdonnel's Case 2 Rolls Rep. 487 482. Warren and Wakeley Ejectione Firme be omnibus Decimis is not good De omnibus Decimis De quadam portione D. 〈◊〉 it lies not de quadam portione Decimarum generally but de quadam portione granorum foeni is good the Nature ought to to be shewed though not the Certainty and the Ejectment was supposed in May when there is not any Tythes and so not good It may be that all the Tything consists in Modo decimandi for Payment of an yearly Sum in Satisfaction of Tythes whereof no Ejectione Firme lies It was a Question in Preist and Wood's Case Cr. Car. 301. Whether an Ejectione Firme lay of Tythes only it may be of a Rectory or such a Chapel and of the Tythes thereunto belonging whereof an Habere fac ' possessionem may be but it was adjudged pro Querente The Ejectment was supposed in taking so many Loads of Wheat and Barley being severed from the Nine Parts 1 Roll. Rep. 68. cited in Worral and Harper's Case 11 Rep. 25. Harper's Case Cro. Car. 301. Preist and Wood. Ejectment of so many Acres Jampnorum Bruerue De 20 Acris Jampnorum Bruere and does not express how many of each yet good Mod. Rep. 9. Fitzgerard's Case Ejectione Firme de una virgata terrae lies not De una Virgata terrae and so it was adjudged in the Exchequer-Chamber Error was brought of a Judgment in C. B. in Ejectment de Virgata terre on general Verdict which is ill being uncertain in every County but the Plaintiff below might have Released Damages as to that but now it is too late Cro. Eliz. 339. Jordan's Case 3 Keb. 450. Hall and Johnson Ejectione Firme lies not de Pannagio De Pannagio Q. de Parco Sid. 417. It lies de Herbagio De Herbagio 2 Rolls Rep. 481 482. Ejectione Firme was brought for Entry into a Messuage sive Tenementum and four Acres of Land to the same belonging Per Cur ' the Declaration is uncertain but it was said as to the four Acres it was certain enough and the Words to the same belonging are meerly void and the Plaintiff released Damages and had Judgment 3 Cro. 228. Wood and Pain Cr. El. 186. mesme Case
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
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
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
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
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
be Filed ibid. Ejectment brought by a Vendee of the Commissioners of Bankrupt 23 Declaration upon a Lease by Commissioners of Bankrupts 78 Ejectment by Baron and Feme 36 75 Ejectment against Baron and Feme Baron dies since the Nisi prius and before the day in Bank the Action continued against the Wife In Ejectment the Wife found Not guilty and Special Verdict as to the Husband 216 Ejectment against Baron and Feme Verdict pro Quer. Between the Verdict and day in Bank Baron dies Q. if Error But it s good to enter the Verdict for Evidence 230 Judgment against Baron and Feme is quod capiantur tho' the Baron is only found Guilty 235 Bill of Exception on the Probate of a Will 158 Where Copy of a Bill in Chancery shall be Read in Evidence or not 159 160 C. Challenge what is principal or not 229 That the Lessor of the Plaintiff is Cosin to the high Sheriff is a principal Challenge in our feigned Ejectments 131 Challenge for default of Hundredors at a Trial at Bar 132 Colour not sufficient in Ejectione Firme and why How Tenant in Common of a Moiety may maintain Ejectione Firme 20 Ejectment by Tenants in Common 74 Conizance of Pleas how to be demanded allowed and pleaded 113 How Copyholder or his Lessee shall maintain Ejectment 15 16 Declaration by a Copyholder in Ejectment 16 Ejectione Firme by a Copyholder before admittance 17 Copyholder Mortgagee must be admitted before he can bring his Action ibid. The Lord upon the seisure of a Copyhold may bring Ejectment till the Heir come to be admitted Copyholder in reversion after an Estate Tail no Witness 147 One Copartner cannot be Evidence for another in Ejectment ibid. Ejectment by Coparceners 74 Where Copies of Deeds shall be Evidence or not 157 Where Copies of Court Rolls may be given in Evidence 158 Ejectment by a Corporation how to be brought 36 77 The Defendant not to plead till Costs assessed in a former Action was paid and security for new Costs 126 The Plaintiff may relinquish his Damages where part of the Action fails and take Judgment for the other 218. But the Costs gone Executor not to pay Costs 219 Feme liable to pay Costs on the Husbands death 220 Lessor of the Plaintiff where to pay Costs ibid. Tenant in Possession liable to pay Costs by the Law ibid. In Judgment against his own Ejector no Costs to be paid by the Tenant in Possession ibid. Costs for want of Continuance 222 Infant-Lessor pays Costs ibid. The sole Remedy for Costs in the first Tryal is by Attachment unless the second Tryal is in the same Court after Verdict ibid. In what Court new Ejectment to be brought 11 Of Ejectment in inferiour Courts 38 Cinque-Ports 112 D. The Plaintiff may relinquish his Damages where part of the Action fails and take Judgment of the other 218 Diversity where Damages are only recovered and where the Term 5 He that desires to be made Defendant in Ejectment must give a Note of what is in his Possession 44 He that is made Defendant in Ejectment is not to be charged in Actions by the by 45 Rule to make the Owner Defendant 105 The Inconvenience of the new Course of Leaving Declarations in Ejectment 40 Of Declarations in Ejectment 47 48 49 c. The Certainty and Quality of the Lands ought to be described in Ejectment 54 The Plaintiff must declare on one Title only 61 Surplusage in the Count not vicious ibid. If the Entry and Ejectment be supposed in the Declaration to be before the Commencement of the Lease the Declaration is void 62 64 It must be alledged in what Vill the Tenements are 62 Ejectment of the fourth part of an House in four parts to be divided and declares de Tenementis praedictis 73 How to declare upon a Lease of Tenant for Life and him in Remainder 76 Where in a Declaration a Life must be averred and where it need not 80 A new Declaration delivered on the Essoyn-day 81 The Declaration delivered after the Essoyn-day and the Consequence 82 Where Copies of the Declarations need not be paid for 83 Declaration need not be of more Acres than he was ejected 97 Of the Omission of vi armis 98 The Omission of Extra tenet ibid. Demanding of a part of Lands without shewing into how many parts divided 99 Declaration in Ejectment quod cum good not so in Trespass ibid. Forms of Declarations in B. R. 101 B. C. 102 Scaccario 103 Copy of a Declaration with the Endorsement ibid. What is to be done after a Declaration delivered 104 What is good Service of the Declaration 107 How and wherein a Special Verdict shall make a Declaration good 187 Decree or decretal Order where allowed to be Evidence 164 DEED Difference between pleading a Deed and giving it in evidence 154 Of finding Deeds in haec verba in Special Verdicts 178 Who to shew the Original Deed in evidence 155 Where a Deed may be proved by Testimony without shewing it 156 In Ejectment against two one pleads to Issue and the other demurs the Issue isfirst to be tryed and why 8 Where and in what Cases Depositions in Chancery shall be read at a Tryal or not 162 Where primer Possession makes a Disseisin 185 Doomsday-Book good evidence 155 E. EJECTMENT The Nature of Ejectione Firme 1 The reason of the Change of Real Actions into Ejectments 2 Ejectment and Trespass for Battery both in one Writ 8 Difference between Ejectione Firme and Quare ejecit infra terminum 9 In what Court Ejectment lies 10 Where to be brought into the Exchequer ibid. In what Court a new Ejectment may be brought 11 How Ejectment to be brought of Lands in Middlesex or London ibid. Who shall have Ejectione Firme 13 In what Cases the Action lies or not 13 14 15 Against whom Ejectione Firme lies 33 Who was counted an Ejector formerly ib. The new Practice in Ejectments 34 The old way of Sealing Ejectments and where and in what Cases still to be used 35 Of the Ejectment Lease 46 Of what things Ejectione Firme may be brought and of what not 47 Ejectment against Tenant by elegit in case of holding over Ely Jurisdiction pleaded 114 Elisors 130 Elegit must be shewed in evidence 154 Entry taken away by Lapse of Time for not entring 21 Entry to deliver Declarations not good to avoid a Fine 62 Entry before the Nisi prius to be pleaded at the Assises 113 Difference between Entry after Verdict and Death ibid. What Entry shall be intended and need not be proved 169 Estoppels how found by a Jury 178 Evidence vide Witnesses What shall be good Evidence in Ejectment 151 152. 153 154 If Record be pleaded it must be sub pede sigilli 151 Copy of a Record may be shewed in Evidence to a Jury ibid. Exemplificat ' of a record in Wales no good Evidence in B. R. and why 152 Scyrograph of a Fine given in Evidence 153 But
is ejected that he shall have an Ejectione Firme without any Admittance of the Lessor or without any Presentment that he is Heir 1 Leon. p. 101. Rumney and Eves Pop. 38 Bullock and Dibler But a Copyholder Mortgagee must be admitted before he bring this Action Copyholder Mortgagee must be admitted before he brings this Action and he may bring his Bill against the Lord to be admitted to inable him to try the Custom 2 Keb. 357. Towell and Cornish Ejectione Firme may be brought by By Executors Executors of Land let to their Testator for years upon ouster of the Testator for years per Stat. 4. Ed. 4. c. 6. which gives an Action for Goods taken out of the Possession of the Testator the Reason is because it is to recover the Term it self 7 H. 4. 6. b. 2 Ventr p. 30. If a Man ousts the Executors of his Lessee for years of their Term they may have a special Action on the Case or they may have Ejectione Firme or Trespass 4 Rep. 95. a. Reg. 97. N. B. 92. In Ejectment the Plaintiff was an Infant at the time of the Bill purchased By Infant and sued by Attorney where he could not make an Attorney but ought to have sued by Guardian per Cur ' it's erroneous and Error en fait Cro. Jac. p. 5. Rew and Long. Deprivation in the Spiritual Court for Symony By Symonist disables from bringing Ejectment because he can make no Lease per H. Windham Buck's Lent Assises 1668. Dr. Crawley's Case In Jefferson and Dawson's Case Council pray'd The Sheriff only to deliver Seâ—sure on Elegit to enable the Plaintiff to maintain Ejectment That delivery of Possession might be awarded on Elegit but the Court denied it the Party having no day to interplead and the Sheriff ought only to deliver Seisure to enable the Plaintiff to maintain Ejectment and the Tenant may plead on the Ejectment or else the Tenant may be turned out unheard and so be remediless and per. Cur ' actual Possession ought not to be delivered but if it be it 's remediless and yet before Entry the Plaintiff for whom the Inquisition is found Ejectione Firme be for actual Entry on Elegit has Possession and before actual Entry he may have Ejectione Firme and is not like to an Interesse Termini M. 25 Car. 2. B. R. In some Cases Remedy against an undue Extent may be by Ejectment Remedy against undue Extent on Elegit by Ejectment as The Inquest by Practice of the Sheriff on Elegit find the Defendant had Lands in A. where he had nothing and so extended all his Lands in B. as a Moiety this is avoidable by Ejectment as to a Moiety and the Evidence may be That the Defendant had nothing in A. or to file the Writ of Elegit and in Ejectment thereon which else cannot be brought to plead the same Ejectment against Tenant by Elegit in case of holding over not so of a Judgment and why or in case of holding over Ejectment lies against Tenant by Elegit if he be satisfied at the extended Value contra of a Judgment which is uncertain for Costs and Damages 1 Keb. 891. Dakin and Hulme 1 Keb. 858. Lord Stamford and Hubbard Intruder on the King's Possession By Intruder cannot make a Lease whereupon the Lessee may maintain an Ejectione Firme tho' he may have an Action of Trespass against a Stranger Stranger may enter notwithstanding Judgment in Informat ' in Intrusion but a Judgment in Information of Intrusion pro Rege binds not a Stranger but that he may enter and bring Ejectment if it were otherwise this would be a Trap for any Man's Possession by lawful Title and the Judgment on Intrusion is not in the nature of Seisin or Possession Judgment in Intrusion what but only quod pars committatur capiatur pro fine and an Entry may be made by the King 's Patentee Hardress p. 460. Friend and the Duke of Richmond If a Stranger entreth upon the King 's Fermor by such Entry he hath gained the Estate for years and if he doth make a Lease to another his Lessee may maintain Ejectione Ferme A Lessee may have Ejectione Firme tho' the Reversion be in the King So that it seems the Ejector by his Entry hath gained the Land 2 H. 6. 6. Dyer 116. b. 3 Leon. p. 206. The Lessee of the King may bring Ejectione Firme The Lessee of the King tho' the King be not put out of the Freehold by the Words He entred and expulsed him Cr. El. 331. Lee and Morris It 's said in Leonard 1 part 212. Lessee of Tenant in Common of one Moiety By Tenant in Common of one Moiety without actual Ouster cannot maintain Ejectione Firme against the Lessee of his Companion J. Entry taken away by lapse of time for not entring M. covenants to stand seised to the use of himself for life and after to the use of his Daughters until every one of them successive shall or may have levied 500 l. Remainder to his eldest Son He had four Daughters at the time of his Deaâ—â— and the Land was worth 100 l. per Annum the Father died in 30 El. the eldest Son immediately entred the eldest Daughter entred in 42 Eliz. and made the Lease to the Plaintiff Per Cur ' she hath overpast her time and cannot enter for then she should prejudice her other Sisters so as they should never levy their Portions Cr. El. 809. Blackbourn and Lassells A Person outlawed may bring Ejectione Firme By a Person outlawed For tho' a Person outlawed cannot after an Extent prevent or avoid the King's Title by Alienation yet the Outlawry gives no Priviledge to the Possession of a Disseisor but that the Disseisee may enter and bring the Ejectment for by the Outlary the King hath only a Title to the Profits and no Interest in the Land Hadr. 156. Hammond's Case vide If a Man ousts the Executors of his Lessee for years of their Term By Executors they may have a special Action on the Case or they may have an Ejectione Firme or Trespass 4. Rep. 95. a. Reg. 97. N. B. 92. One seised of Lands in Fee-Simple The Bail lets Lands to B. Judgment is against the Principal and Extent on the Lands leased B brings Ejectment becomes Bail in an Action of Debt in B. R. and after Issue joyned let the Land to B. the Plaintiff Judgment is afterwards given against the Principal and an Extent taken upon the said leased Lands B. the Plaintiff being thereupon ousted brings this Action of Ejectione Firme Crok Jac. 449. Kervile and Brokest Tenant for life Where the Issue in Tail is 〈◊〉 to Execution on a 〈◊〉 on Sc ' fac ' retorned and he comes not in and pleads he shall not bring his Ejectment Remainder to his Issue in Tail Tenant for life enters into a Stat ' and dies Conisee sues
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
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
and that is not supplied by the words virtute cujus but no Judgment was given because two against two yet in Dyer 89. in margine it 's said because he did not aver in facto that he entred after the day of the date for the Lease doth not commence till the next day that Judgment was arrested absente Popham And another case is there cited M. 44. or 42. El. B. R. in Ejectione Firme upon a Lease made to commence at Michaelmas and the Plaintiff declares That he virtute dimissionis c. And it was moved in Arrest of Judgment because he saith not he entred after Michaelmas And Dyer 89. was cited and Gaudy and Fenner held it ill but per Popham it is aided by the Statute of Jeofayis because it is Form only and the Demise is the Substance and per Popham after Michaelmas he is Termor by the Continuance of the Possession quod Fenner and Gaudy negaverunt But in Wakely and Warner's Case Ejectment was brough in Ireland and Judgment pro Querente Virtute cujus praetextu cujus he entred It was assigned for Error that the Plaintiff shews a Lease made to him to commence at a day to come virtute cujus he entred and was possest until ejected by the Defendant and shews not when he entred either after or before the day at which the Lease commenced sed non allocatur because he said virtute cujus c. But by Lea Chief Justice if he had said praetextu cujus it had been otherwise Moor 466. Ejectment of a Lease made the 12 of Dec. Commencement Habend ' à primo die On Not guilty the Jury find a Lease made in haec verba which was dated primo Decemb. Hab. from henceforth but delivered the 12th of Decemb. and the Question was Whether this be according to the Declaration It was objected That from the day of the Date and from henceforth are several Commencements for the one begins the day it was sealed the other the day after but per Cur ' they are all one being a Computation of time from the time past Habend à die datus expounded and both shall be pleaded to begin from the day of the Date when the Lease is afterward sealed another day But if he declares of a Lease the first of December Hab ' à die datus the Ejectment cannot be alledged the same day but if the Lease be made the first of Decemb. Hab. henceforth the Ejectment may be alledged the same day So was the Case of Osborn and Ryder Ejectment on a Lease made 1 Jan. 3 Jac. Hab. à die datus and the Ejectment was the same day and ruled to be good tho' the Hab. is as much as to say from the day of the Date but per Cur ' the Date is the time of the Delivery and it differs from the day of the Date wherefore the Ejectment alledged postea the same day is good enough Cro. Jac. p. 258. Lluellyn and Williams And p. 135. Osborn and Ryder Ejectione Firme of a Lease dated the 6th of December 17 Jac. Hab. à die datus upon Evidence the Lease was shewed and was dated the 6th of Decemb. 19 Jac. Hab. à die confectionis the Plaintiff was Nonsuited Cr. Jac. Scavage's Case The Plaintiff declares upon a Lease made the 10th day of October Hab. from the 20th day of Novemb. for five years the Question was upon a special Verdict Whether this was a good Lease or not Judgment was arrested It shall not begin from the time of the Delivery Uncertain Limitation of the Commencement of the Lease but it 's an uncertain Limitation and cannot be known what November he meant last past or next ensuing But the Law will reject an impossible Limitation as from the 31st of Septemb. because it cannot be any part of the Parties Agreement The Declaration was Quod cum J. H. by his Indenture bearing date the 20th of May 32 Eliz. No day of the Delivery shewed had let to him an House and shews not when the Lease was made for he doth not shew any day of the Delivery per Cur ' it's good For it shall be intended to be delivered at the day of the Date Mod. Rep. p. 180. 3 Leon. p. 266. Kniver and Cope In Ejectment of the Manor of D. Variance containing 250 Acres be it more or less with Letters of Attorney reciting Whereas J. the Lessor had made a Lease of a Manor containing 250 Acres and Authority to make Livery according to the recited Lease per Cur ' the Variance is fatal and the Plaintiff was nonsuited 3 Keb. 691. Smith and Talbot M. 18 Car. 2. Plaintiff declares In what Vill. That P. C. by Indenture apud S. let unto him an House and 20 Acres of Land by the Name of all the Tenements in S. After Verdict Judgment was Arrested because it was not alledged in what Vill the Tenements are Per nomen and the naming of the Vill in the Pernomen is not material Cr. El. 822. Gray and Chapman 50 Hobert 89. Rich and Shere Declaration was That at E. in Com' praedict ' he did demise one Messuage four Gardens Two hundred Acres of Land Eighty Acres of Pasture called East-Dizard in the said County On Not guilty the Plaintiff had Judgment it was Error because the Plaintiff in his Declaration did not shew in what Town Parish Hamlet or Place the said Tenement called East-Dizard lay and Judgment was reversed in the E◠chequer-Chamber Declaration was of a Lease of Serjeant Hele That he the 16th of January 44 El. by Indenture dated the 2d of January demised c. it was moved That the Declaration was not good because it is that he demised the 16th of Jan. by Indenture dated the 2d of Jan. When the Lease shall be intended to be delivered on the day of the Demise and not of the Date and he does not say primo delibat ' the 16th of Jan. for otherwise it shall be intended to be delivered the day it bears date But per Cur ' it's good for tho' a Deed shall be intended to be delivered the day it bears date unless the contrary be shewed yet when it 's said he demised such a day by Indenture dated such a day before it must be necessarily intended it was not delivered the same day it bears date but upon the day of the Demise as it is alledged Cro. El. 890. House and Laxton Cro. El. p. 773. Hall and Denby And the Verdict often aids and intends that it was delivered the same day it bears date as in Heaton and Hurleston's Case The Declaration was Whereas J. S. by Indenture the 9th of June 19 Jac. dimisisset c. Habend ' terminum praedict ' à die datus sigillationis Indenturae praedictae for three years virtute cujus the Plaintiff the 10th of June 19 Jac. entred and was possessed until c. and Verdict pro Quer ' on Not guilty
per Cur. ' when the Verdict has found him guilty upon the Declaration and the Ejectment is alledged according to the Declaration it may well be intended that the Indenture bore date and was sealed and delivered the same day mentioned in the Declaration of the Lease tho' it was objected That neither the day of the Date nor of the Sealing and Delivery of the Indenture are mentioned and so the Declaration uncertain but Judgment pro Querente Cro. Jac. 646. Heaton and Hurlestone Now in Wakely and Warren's Case Virtute cujus praetextu cujus he entred the difference between them tho' the Plaintiff does not shew in his Declaration when he entred either after or before the day on which the Lease commenced yet it 's good enough because he saith the Lease to him made was to commence at a day to come virtute cujus he entred and was possest until c. aliter had it been if he had said praetextu cujus 2 Rolls Rep. 466. Wakely and Warren Now the Judges favour Declarations in Ejectment as may be seen 1 Ventr 136. The Plaintiff declares in Ejectment That J. S. demised to him per quoddam Scriptum Obligatorium c. Habend ' à die datus Indenturae praedictae per Cur ' the Writing shall be intended an Indenture tho' it be called Scriptum Obligatortum and every Deed obligeth but if it shall not be intended Indented then the Lease shall begin presently as if it had been made from the 4th of September But a Declaration was of a Lease Hab. à die datus Indenturae praedictae and does not speak of any Indenture before and the Declaration was adjudged naught But Ejectione Firme of a Lease made the 20th of August Hab. from Michaelmas then last past ante datum hujus Indenturae and neither shewed the Indenture nor the Date thereof and per Cur ' it 's well enough The Addition ante â—â—tum Indenturae shall be void the other being good Et postea how expounded and the beginning of the Lease appearing certain enough Hetley 63. Brady and Johnson Cro. El. 606. Darrel and Middleton Ejectione Firme of a Lease made the 21st of Octob. 4 Jac. quod postea scilicet eodem 21 die Octob. Anno tertio supradicto he ejected him And the Addition of an Year which was not mentioned before and which is repugnant to that day which was mentioned is idle and shall be taken for null postea the same day shall be good enough Cro. Jac. 154. Brigate and Short Error was assigned Ejectment of the 4th part of an House in 4 parts to be divided and declares de tenementis praedictis for that the Plaintiff did Count of the Lease of the fourth part of an House in N. in four parts to be divided by force of which he entred in tenementum praedictum and was inde possessionat ' till the Desendant did eject him de tenementis praedictis whereas he ought to suppose his Entry into the fourth part and the Ejectment of the fourth part sed non alloc ' for the Entry and Ejectment supposed de tenementis praedictis shall not be intended of the intire Tenement but of the fourth part of the House according to his Declaration Cr. El. 286. Rawson and Mainard Ejectment for Tythes not saying by Deed Judgment was reversed 2 Keb. 376. Angell and Rolf. 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 lay in the Parishes of St. Peter and St. Paul but that there is no Parish called the Parish of St. Peter nor none called the Parish of St. Paul per Cur ' the Copulation Et shall be referred to that which is real and hath existence ut res magis valeat to make them both one Parish and the words several Parishes is supplied by the other Parishes aforenamed Hardr. 336. Ingleton and Wakeman By Coheirs or Coparceners Declaration by Coparceners Quod demiserunt Quod dimiserunt is good therefore Molliner and Robinson's Case Moor 682. where the Lease was made by two Coparceners and it was declared Quod dimiserunt To which it was excepted that the Lease is the several Lease of each of them for his Moiety which was there ruled a good Exception is not Law 2 Brownl 207. Cro. El. 615. 2 Keb. 192. Moor 682. And now Ejectments in such Cases are by the Lessee of a Lessee of the whole by many Coheirs Coheirs declare by the Lessee of a Lessee and why which is by reason of the Uncertainty of the part claimed by the Lessors and per Cur ' a Lease of all parts warrants the Lease of all 2 Keb. 700. By Tenants in Common If Two Tenants in Common joyn in a Lease for years to bring Ejectment and Count quod dimisissent it 's naught for it is a several Lease of their Moieties and they must declare Quod cum one of them dimised the one Moiety and the other the other Moiety 1 Brownl 13. Cr. Jac. 166. Mantley's Case If one Tenant in Common take the whole Profits the other has no Remedy by Law against him for the taking the whole Profits is no Ejectment but if he drive away the Cattel of the other Tenant in Common off the Land or not suffer him to enter and occupy the Land this is an Expulsion and he may have Ejectione Firme for the one Moiety and recover Damages for the Entry but not for the mean Profits 1 Instit p. 199. b. By Baron and Feme The Plaintiff declares of a Lease made to him by Baron and Feme generally and does not alledge it to be by Deed it was a great Question in our Books whether this be good or not but now it 's ruled to be good by many Precedents 2 Rep. 61. Wiscot's Case By Joyntenants C. and R. and W. Daughter to R. are Joyntenants for years W. lets her part to C. and C. and R. joyn in this Lease of the entire Land to the Plaintiff for three years Popham and Fenner held That this Lease well warrants the Declaration for upon the matter they both let the entire and upon this general Count it is good Yelverton and Williams è contra because the Count supposeth they both let the entire as Joyntenants for so it is intended by the general Count which appears to be false for they two let two Parts joyntly and the one of them having a third Part as Tenant in Common Two as Joynt-tenants and one as Tenant in Common demise the Commons in such Cases how to declare le ts that only and so the Declation ought to have shewed the Truth and the Special Matter And because it is difficult they use in such Case to make a Lease and the Lessee to make a second Lease and the second Lessee to declare generally and so all the matter shall come in Evidence Fleming before whom it was tryed by Nisi
prius over-ruled it that this Declaration was well maintained by the Lease and the Jury gave a Verdict according to his Opinion Cro. Jac. p. 83. Jordan and Steere Upon a Lease by Tenant for life and him in Remainder A. Tenant for life Remainder to B. in fee they both by Indenture joyn in a Lease to the Plaintiff Per Cur ' this is the Lease of A. during his Life the Confirmation of B. and after the Death of A. it is the Lease of B. and the Confirmation of A. And because the Plaintiff in Ejectment had counted of a joynt-Lease by A. Verdict and B. it was adjudged against him 6 Rep. 15. Treport's Case So is the Case in Popham p. 57. upon a Demise by Dorothy Pool and Robert Smith it was thus on a Special Verdict Dorothy was Tenant for Life Remainder to Smith in Fee and they being so seised made the Lease in the Declaration Per Cur ' the Lease found per the Verdict doth not warrant the Lease alledged in the Declaration for during Dorothy's Life it 's her demise and not the demise of Smith but as his Confirmation for that time for he had nothing to do to meddle with the Land during the Life of Dorothy and after her death it shall be said to be the demise of Smith and not before Poph. 57. King and Berry By a Corporation The Plaintiff declares upon a Lease to him made by the President Fellows and Scholars of St. John's Colledge Oxon. and in the Conclusion he doth not say hic in Curia prolat ' Per Williams it is not good The Ejectment-Lease being made by a Corporation they sealed the Lease and delivered it by their Attorney having a Letter of Attorney from them to deliver the same they cannot do this in any other manner than by their Attorney 1 Bulstr. 119. Lord Norris's Case Hill 36 El. Carter and Cromwel in Ejectione Firme the Plaintiff counts per Lease made by the Warden of All-souls Colledge in Oxon. And Exception was taken because the name of Baptism of the Warden was omitted but adjudged there need not the difference is where a Corporation is sole Person as Bishop there may be his Name aliter aggregate Dyer 86. Marg. Ejectment was brought on a Demise of a Corporation not saying by Deed per Cur ' Judgment shall not be arrested for this on Judgment by cognovit Actionem at the Assises but it shall be intended after this as well as after a Verdict Upon a Lease by Commissioners of Bankrupt Commissioners of Bankrupt had assigned the Land in Question to the Lessor of the Plaintiff which Indenture was afterwards inrolled but the Declaration was of a Demise made after the Indenture and before the Inrolment and whether that Demise were sufficient to intitle the Lessor of the Plaintiff was the Question in Perry and Bowe 's Case Per Cur ' it is not sufficient Vide le case 2 Ventr 360. Perry and Bower By Copyholder If a Lease be found made by a Guardian or Copyholder such a Lease will maintain the Declaration tho' their Leases are void against the Lord and Infant Hardr. 330. Wheeler's Case Vide supra Tit. Who shall have Ejectione Firme By Administrator He ought to shew how the Archbishop granted it either as Ordinary or by his Prerogative and therefore Exception was taken to a Declaration in Ejectment because the Plaintiff conveyed his Interest by an Administrator of all the Goods of the Lessee in Sussex and Kent but shews not how the Archbishop granted it either as Ordinary or by his Prerogative Presidents not to be changed and this was held by the Court to be a material Exception But because all the Presidents in B. R. and B. C. were so in general without shewing how and because they would not change Presidents they disallowed the Exception Cro. El. p. 6. Dorrel and Collins In Gillam and Lovelace's Case it was moved in Arrest of Judgment That the Declaration brought by Administratrix was not good because the granting forth Letters of Administration was in this manner viz. Administratio commissa fuit querenti per William Lewin vicarium generalem in spiritualibus Episc Rot. without averring that at the time of the granting Letters of Administration Vicar-General the Bishop was in remotis agendis for a Bishop present in England cannot have Vicarium but per Cur ' the Vicar-General in spiritualibus amounts to a Chancellor for in the Truth a Chancellor is Vicar-General to the Bishop 2. The Declaration is not Episcop Roff. loci illius ordinarii but per Cur. all the Presidents are so and in a Declaration such Allegation needs not but by way of Barr it is necessary 3. The Plaintiff declares of Ejectment and also quod bona catalla ibid. invent cepit and in the Verdict the Damages for the Ejectment and Goods are entirely taxed Quaere de hoc 1 Leon. p. 312. Gilham and Lovelace Ejectione Firme was brought of a Lease of Tythes and shews not that it was by Deed and ruled to be ill because Tythes cannot pass without Deed Cr. Jac. 613. Swadling and Peers CHAP. VII Where in the Declaration a Life must be averred and where it need not Of Delivery of Declarations at or after the Essoyne-day Declurations when to be entred as of the same Term where the Copies need not be paid for Declarations when amendable or not Of expressing the Vills where the Lands lie Of the Pernomen Declaration need not be of more Acres than he was ejected out of Of the Forms of the Declaration Vi Armis omitted Extr. tenet omitted The President of Declarations in C. B. in B. R. in Scacario The Indorsement on the Copy to be left with the Tenant and what the Tenant is to do thereupon The Rule for confessing Lease Entry and Ouster in B. C. and in B. R. IF one do declare upon a Lease in Ejectione Firme and that by Virtue of that Lease he was in possession of the Lands thereby let to him until that he was ejected by the Defendant it is supposed that the Lessor who made the Lease to him was alive at the time of the Action brought Pract. Reg. 110. The Plaintiff in Ejectment declared of a Lease for three years if the Wife of the Plaintiff shall so long live and does not shew that the Wife is yet in Life yet per Cur ' this being after a Verdict is made good by the Stat. 21 Jac. of Amendments after Examination by the Sheriff And in Arundel's Case in Ejectment the Plaintiff declares that the Lady Morley being only Tenant for life made a Lease to him for three years if she should so long live virtute cujus intravit fuit possessionat ' until the Defendant entred upon him illum à firma sua praedicta termino suo nondum finito extratenet c. and he did not averr the Life of the Lady Morley But per Cur ' this amounts to an Averment for he
saith his Term is not yet ended which implies she is alive and the years not expired and this was after a Verdict But had it been demurred to it had been more ambiguous So Dyer 304. in Ejectione Firme on a Lease his Supposition that the person adhuc seisitus existit implies his Life Siderf p. 61. Palmer Rep. 267 268. Arundel and Mead. Cro. Jac. mesme case 2 Browl. 165. It was the Opinion of the Court in Cro. El. p. 18. Higgins and Grant's Case That if in Ejectment one declares of a Lease by a Parson he ought to averr his Life for by his death his Lease is void but it 's now otherwise 2 Bulstr 79. Cr. El. 18. Higgins and Grant Of the Delivery of Declarations Filing and Entry The Court A new Declaration delivered on the Essoyn-say in Car. 2. Snow and Cooley's Case upon Motion ordered That a new Declaration delivered on the Essoyn-day should be sufficient the old one being delivered before the Lessee dying and the Name was changed there being sufficient Notice and this being the Act of God shall not prejudice 1 Keb. 755. If the Declaration in Ejectment be delivered after the Essoyn-day The Declaration is delivered after the Essoyn-day and the Consequence it is but entred of that Term and not of the Term before and the Plaintiff in such case cannot have Judgment the same Term but if he doth not move the following Term to have Judgment especially if any Assises intervene he cannot have it without new notice left at the House of the Defendant and the Default made at first 1 Keb. 721. If the Declaration in Ejectment be of Michaelmas-Term What day the Bill was filed is examinable whether after the day of the Lease tho' it 's the same Term. which relates to the first day of the Term yet it 's a matter of Evidence and examinable what day the Bill was filed and if it was after the day of the Lease all is well On a special Verdict it was moved for the Defendant That the Declaration was in Michaelmas-Term 2 Jac. 2. and the Demise is laid to be the 30th of October 2 Jac. 2. and so after the Term began Note the Declaration cited an Original and an Original was produced Teste 2. Nov. which was after the Demise and the Prothonotaries informed the Court That this was frequently allowed and that no Memorandums of the Originals bearing Teste within the Term was used to be made upon the Record Sid. p. 432. Prodger's Case 2 Ventr Tonstale and Broad It is the Course of the Court in Ejectment if the * If the Owner prays to be made Defendant the Declaration to be entred as of the same Term but no new Imparlance Owner of the Land comes in and prays to be Defendant the Declaration shall be entred as of this Term altho' it were of the last Term against the casual Ejector but yet being by favour of the Court admitted he shall have no new Imparlance besides that which the casual Ejector had And by Hide there is difference between the Tenant in Possession who is Defendant ex debito on his Prayer contra of J. S. who is only concerned in Title 1 Keb. 706. Roch and Plumpton If the Declaration filed be paid for Where Copies of the Declaration need not be paid for they need not pay for the Copies and so a Trial at Bar shall not be hindred for want of payment of the Copies 2 Keb. 805. I find a Rule of Court to change the year thus ss Mich. 13 Car. Ordinat est per Curiam nono die Octob qd quer ' narrationem suam in intratione inter partes de Termino St. Trin ult intxat in Anno dimissionis emendavit Et ubi per misprisionem Clerici allegavit dimissionem fieri duodecimo die Aprilis Anno undecimo Caroli fieri debuit Anno duodeeimo quer ' solveret Def. miss per Magistrâ— Gulston taxand pro emendatione illa ex motione Magistri Boon Lessee for three years makes a Lease for five years in Ejectment to try the Title Lease not warranted by the Declaration and the Jury on special Verdict doubt whether the Defendant be guilty for 3 or 5 years Per Cur ' the Declaration is ill and the Plaintiff can have no Judgment Per Hale the Lease is good only for three years Declaration and the Defendant shall be guilty for no more else the Plaintiff would recover Terminum praedict ' which is five years but no Judgment can be for three years being not warranted by the Declaration Tr. 27 Car. 2. B. R. Rowe and Williamson Mr. Levett's Case of the Inner-Temple Sir Roger Puleston Kt. Plaintiff Sir Peter Warburton and others Defendants Ejectment upon the Demise of John Levet and his Wife wherein the Plaintiff declares that John Levett and Margaret his Wife the 10th of April 1697. demised to the Plaintiff Habend from the 25th day of March then last past for five years THIS was tried at the Bar Argument and a Verdict for the Plaintiff and the Defendants have moved in Arrest of Judgment Argued at the King's Bench before Lord C. J. Holt c. for that the Demise is laid the 10th of Apr. 1697. which is not yet come whereas it should be 1696. which the Plaintiff hath moved to amend and the same ought to be amended c. for these Reasons wherein I shall only apply my self to the Statute of the 16 and 17 of King Charles the Second Cap. 8. which I humbly conceive hath not been sufficiently spoken to in this matter which saith That no Judgments shall be staid or reversed after Verdict for any Mistake in the Christian Name Day Month or Year by the Clerk where the right Name Sirname Day Month or Year in any Writ Roll Plaint or Record preceeding or in the same Roll or Record are once rightly named but that all such Omissions Variations Defects and all other matters of the like nature being not against the right of the matter of Suit nor whereby the Issue or Trial are altered shall be amended by the Records That we are within the Benefit of this Statute I shall offer this to your Lordship The Declaration against the casual Ejector delivered to the Tenants in the Country was right that expressing the Demise to be the 10th of April 1696. which ought to have been the time mentioned in this Declaration for all the mistake was only betwixt septimo sexto and there is an Imparlance entred on the Roll in Easter-Term last against the casual Ejector which is right As in all Actions brought by Bill the usual Method of proceeding is to file the Bill or Declaration in the Office and as all Defects on the Roll are amendable by that so this being brought by Original instead of Filing a Bill in the Office an Imparlance is entred on the Roll and the Method of proceeding is in the same manner as in the
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
de transgressione Ejectione praedict ' quam de omnibus aliis querelis debitis debatis inter eos ante tunc habitis fact ' sive propter al' c. habebatur concordia that in Satisfaction thereof the said R. one of the Defendants should pay to the Plaintiff 6 l. 10 s. at the Feast of St. Michael then next ensuing and that for the true payment of this he shall become bound in an Obligation of 13 l. and pleads performance of this and the Receipt of the said Sum at the said Feast accordingly And it was resolved That Accord in this Action is a good Plea as being in nature of a Trespass And tho' the Term which is a Chattel real shall be recovered as well as Damages yet it 's a good Plea and Accord and Satisfaction for one shall discharge all the Trespassors and Ejectors Vid. this Case argued 2 Brownl 128. 9 Rep. 77. Henry Peytoe's Case But now the Rule is to stand upon the Title only Aid prier where Aid shall be granted in this Action and in what Cases not The Defendant justified as in his Franktenement the Reversion to the King The Defendant shall not have Aid of the King and why and prayed in Aid of the King per Cur ' he shall not have Aid in this Action which is as a Trespass upon this Plea for he needs no Aid of the King to maintain this Plea So in Allen and Hallowel's Case the Defendant pleads That the Queen was seized in Fee and let it to J. S. for years by Patent who let it to the Defendant and prays in Aid of the Queen and it was ruled to be no Plea because he is not immediate Tenant wherefore a Respondeas Ouster was awarded And in Bridgman's Rep. 87. it is agreed That the Defendant shall not have Aid of the King because he is not his immediate Tenant and so no Privity between the King and him And to the same purpose is Anderson's Case in Hardress's Reports The Defendant prayed in Aid of the King's Lessee for 99 years for his Dutchy Land in trust for the Queen as part of her Joynture and as Bailiff to them and it was denied by the Court. And upon the General Issue it appears not whether the Right will come in Question and yet it 's said in the Countess of Kent's Case 3 Jac. B. R. That in Ejectione Firme the Defendant shall have Aid of the King because by Intendment the Freehold shall come in Debate in this Action 1 Rolls Abr. 407 156. Bennet's Case Cro. El. p. 374. Allen and Hollowell Hardr. 179. Anderson and Arundel 1 Rolls Abr. 148. But Aid lies in Ejectione Firme of a common Person when the Title of the Land is to come in question Defendant shall have Aid of a common Person And if a Man recover in Ejectione Firme against J. S. who dies in a Scire factas against his Heir the Heir shall have Aid of him in whose Title his Ancestor claims 1 Rolls Abr. 161 162. In Ejectment the Defendant pleaded Not guilty A Writ not to proceed Regina inconsulta allowed and after Issue joyned the Queen sent a Special Writ to the Court reciting that how the Defendant was Tenant in Tail with divers Remainders over the Reversion to the Queen and that her Reversion might be prejudiced by this Trial. Wherefore it was commanded then not to proceed to the Trial of this Issue Regina inconsulta And it was a Question much debated whether this Writ were allowable or not because it is a personal Action only Per Cur ' this Writ ought to be allowed as well as Aid prier because it appears to them that the Queen may be prejudiced in her Title and by the Writ there is a Recital of a Title in the Queen and her Trial of Right is to be discussed in Chancery In such Case where the King's Trial of Right to be dismissed where the Queen's Records are to prove her Title therefore per Curiam we shall not proceed without a Procedendo Vid. 1 Anders 280. Blofeild and Harris Cro. El p. 417. Sale and Barrington Moor 421. mesme Case Hardr. 428. In Trespass for breaking his Close Recovery and Execution in a former Action pleaded in Bar. The Defendant pleads That before this he had brought Ejectione Firme against the now Plaintiff and recovered and had Execution c. Judgment si actio Per Curiam it is a good Bar and the Conclusion of the Plea is also good Judgment si actio without relying upon the Estoppel 1 Leon. p. 313. Kempton and Cooper Ejectione Firme was brought against Drake and five others Drake pleads Not guilty the other five quoad 20 Acras plead Not guilty and as to the Residue that long time before c. the Plaintiff in his Replicat ' said He was possessed till by the said five Defendants who pleaded in Bar he was ejected and by his Declaration he has supposed himself to be ejected by all the six Defendants and so a Departure from the Declaration in the number of the Ejectors But Curia contra Several Issue For Drake by his several Issue which he has joyned with the Plaintiff upon Not guilty is severed from the other five Defendants and then when they plead in Bar the Plaintiff ought to reply to them without medling with Drake So in Ejectione Firme of 20 Acres the Defendant as to 10 Acres pleads Not guilty upon which they are at Issue and the Plaintiff replies as to the other 10 Acres and so was possest until by the Defendant of the said 10 Acres he was ejected this is good without speaking of the other 10 Acres upon which the general Issue is joyned 2 Leon. p. 199. Holland and Drake It was moved for the Defendant In this Action not to plead specially without Consent of the Plaintiff that he might have Liberty to plead specially in an Action of Trespass and Ejectment and not generally Not guilty because there had been matter given in evidence at a former Trial which ought not to have been By Rolls if the other will not consent you shall not plead specially but proceed according to the Course of the Court Stiles Rep. 412. Note The Defendant by Rule of Court Defendant not to plead till Costs assessed in a former Action was paid and Security for new Costs was not to plead till Costs paid assessed in a former Action on Nonsuit and that another Plaintiff might be named or that Security be given to pay the Costs if the Plaintiff should be Nonsuit again Stiles p. 433. Bar or Recovery in one Ejectione how far a Bar or Recovery in another It was a Question Whether a Bar in one Ejectione Firme were a Bar in another Bar in one Ejectione Firme how a Bar in another And Justice Berkley said It was adjudged upon this Difference That a Bar in one Ejectione Firme is a Bar in another for the same Ejectment
but not for another and new Ejectment Recovery in one Ejectione Firme a Bar in another And in Godbolt's Rep. Case 128. in Trespass the Defendant pleaded that at another time before the Trespass he did recover against the same Plaintiff in Ejectione Firme and demanded Judgment Per Cur ' it is a good Plea prima facie and that the Possession is bound by it for otherwise the Recovery should be vain and ineffectual And by Anderson If two claim one and the same Land by several Leases and the one recovereth in Ejectione Firme against the other that if afterwards the other bringeth an Ejectione Firme of the same Land the first Recovery shall be a Bar against him Per Rhodes a Recovery in an ad terminum qui praeteriit shall bind the Possession Godb. p. 109. no. 128. 3 Leon. 194. In Trespass for breaking his Close the Defendant pleads before this he had brought Ejectione Firme against the now Plaintiff and recovered and had Execution Judgment si actio Per Cur ' in 1 Leon. 313. Kempton and Cooper's Case and 3 Leon 194. the same is a good Bar and the Conclusion of the Plea is also good Judgment si actio without relying on the Estoppel and by two Justices it is no Estoppel for the Conclusion shall be Judgment si actio and not si serra respond ' and it was well pleaded For as by Recovery in Assise the Freehold is bound so by Recovery in Ejectione Firme the Possession is bound And by Anderson a Recovery in one Ejectione Firme is a Bar in another especially if the party relieth upon the Estoppel and altho' it be in an Action personal and in the nature of a Trespass yet the Judgment is good habeat possessionem termini sui during which Term the Judgment is in force and it 's no reason he should be ousted by him against whom he recovered for so Suits would be infinite but this grave Advice is now laid aside 4 Leon. 77. Spring and Lawson Note In Ejectione Firme against two Defendants one confesseth the Action and the other pleads in Bar Non Culp ' per Cur ' tho in Trespass against two 2 Defendants one confesseth the other pleads in Bar he cannot leave the one and proceed against and the one makes Default and the other confesseth the Action he may well relinquish his Suit against him who makes Default and proceed against the other which confesseth or pleads in Bar because this Suit is only in point of Damages but not so in Ejectment he cannot relinquish his Suite against one and proceed against the other for if so any Man may be tricked 2 Bulstr 113. Expiration of the Term in Ejectione Firme is no Plea Latch 106. Upon a Trial at Bar between Odil and Terril a Juror was challenged for that he said to one of the parties Provide you to pay for if I am sworn I will give the Verdict against you And that this is true the Parties to whom the Words were spoken did offer to depose the same and the Question was if he should be suffered to swear this he being one of the parties and he was allowed by the Court to be sworn to prove the Challenge good the other The Juror had bought Land of the Eessor and for this Cause the Triers found him not to be indifferent and so he was withdrawn Another Juror was challenged in this case for that he had bought Land of one of the parties in the Suit viz. of the Lessor and that the Lessor did owe to this Juror 10 l. and notwithstanding this Challenge the Triers found him indifferent otherwise per Cur ' if the Juror had owed Money to one of the parties 1 Bulst 20 21. Odil and Terril CHAB IX Of Challenge What is Principal or not Of Elisors Of Venue Where the Parish and Vill shall be intended all one Where it shall not be de Corpore Comitatus Where the Venire fac ' is amendable Venire fac ' to the Coroners because the Sheriff is Cousin to one of the Defendants A Venire de Forrest Venire de Novo for Baron and Feme BY Coke in Guest and Bridgman's Case Cousin to the Lessor it 's not a principal Challenge that the Sheriff is Cousin to the Lessor in Ejectment for the Lessor cannot hinder the Action of the Lessee this is not Law 1 Rolls Rep. 328. 2 Rolls Rep. 181. Banister's Case Venire fac ' awarded to the Coroners upon Surmise that the Lessor was Servant to the Sheriff Lessor Servant to the Sheriff Q. if it be a principal Challenge if it be no principal Challenge then is not the Writ well awarded and is not aided per Stat. 32 H. 8. Cro. Jac. p. 21. Harebotle and Placock Challenge to the Sheriff The Sheriff Cousin to the Plaintiff and a Venire fac ' prayed to the Coroners because the Sheriff is Cousin to the Plaintiff and shews how and because the Defendant did not deny it a Venire fac ' was awarded to the Coroners and Judgment was arrested because it was not a principal Challenge and a Venire de Novo awarded to the Sheriff 1 Brownl 130. Cradock and Jones It is not any principal Challenge to a Juror in Ejectione Firme That he had married the Cousin-german of A. That a Juror had married the Cousin-german of A. who was the Wife of R. from whom is descended H. from whom is descended B. who have the Reversion of the Land in question after the Death of his Mother who is to had an Estate for Life this is not any princapal Challenge because the Estate of B. does not appear in the Record and he had not the immediate Reversion 2 Rolls Abr. 654. Gabriel Dennis's Case In the Lord Brooks's Case the Court was informed That rhe Lessor of the Plaintiff was High Sheriff of the County and that the Coroner was Under-Sheriff Elisors and it was prayed that that Elisors might return the Jury but the Court would not grant it at the Prayer of the Defendant though the Plaintiff offered to agree to it it being in a Trial of Nisi prius but had it been in a Trial at Bar the Court would have granted it That the Lessor of the Plaintiff is High-Sheriff a principal Challenge but the regular Course is for the Plaintiff to pray it or else the Defendant may challenge the Array at the Assises for it is a principal Challenge that the Lessor of the Plaintiff is High-Sheriff or of Kindred to the Sheriff Tr. 1657. Hut 25. Moor 470. Rolls Rep. 320. 15 Car. 2. B. R. Duncomb and Ingleby In Ejectment the Plaintiff suggesteth that his Lessor the Sheriff and Coroners were Tenants to a Dean and Chapter Elisors whose Interest was concerned and prayed the Venire fac ' to Elisors and had it being confessed by the Defendant and the Court took it as a principal Challenge Duncomb and Inglesby's Case In Ejectione Firme the
or Will and so the Jury may find them the Deed or Will not being found in haec verba Stiles p. 34. Wright and Pindar A Deed made before the time of Memory A Deed made before time of Memory Ancient Deed. may be given in Evidence tho' it cannot be pleaded An ancient Deed is good Evidence without proving or Seal to it P. 17 Car. 2. B. R. Wright and Sherrard A Will Will. Probate under which a Title of Land is made must be shewed it self and the Probate is not sufficient Contra if it were on a Circumstance or as Inducement or that the Will remain in Chancery or other Court by Special Order of such Court 1 Keb. 117. Eden and Thalkill 2 Rolls 678. So is Brett's A Probate of a Will by Witnesses for Lands is not Evidence at Common Law And nothing can be given in Evidence against the Probate of a Will but Forgery of it or its being obtained by Surprize and so it 's conclusive Raym. 405. Error was brought of a Judgment in C. B. in Ireland in Ejectment The Question was upon a Bill of Exception for that the Justices of the Bench there would not direct the Jury Bill of Exceptions on the Probate of a Will that the Probate of a Will before the Archbishop of Canterbury the Testator dying in his Province and also the Bishop of Fernes were sufficient and conclusive Evidence but only affirmed it was good Evidence leaving it to the Jury To which the other Party shews in Evidence Letters of Administration of the Goods under Seal of the Primate of Ireland The Title was for a Lease for years in Ireland claimed by the Lessor of the Plaintiff under the said Administrator And Judgment was affirmed Per Curiam Where Bills Answers Depositions c. in Chancery shall be good Evidence in this Action or not In Ejectment the Defendant that made Title as a Purchasor under a Devisee Bill preferred by the Heir against the Devisee setting forth the Will and shewed only a Bill in Chancery preferred by the Heir under whom the Lessor of the Plaintiff claims against the Devisee whereby the Will was set forth and confessed in the Answer But per Curiam it is no Evidence tho' a Possession were proved accordingly in the Devisee and that this had been confessed by the Plaintiff in a former Tryal 2 Keb. 35. Evans and Herbert And yet in 1 Ventr p. 66. A Bill in Chancery was said to be given in Evidence against the Complainant On a Tryal in Ejectment it was shewed for Evidence That the Defendant P. was guilty of Simony for giving 100 l. per Annum to M. the Patron and to prove this they shewed a Bond conditioned to pay 100 l. per Annum generally And they say That an Action of Debt was brought against P. and P. had preferred his Bill in Chancery to be relieved against this Bond and by it disclosed that it was entred into for the Cause aforesaid But to that it was Answered That P. was presented by G. but it appeared that G. acted as a Servant to M. the Patron and it was opposed Where a Copy of a Bill shall be read as Evidence That this Bill is no Evidence because it only contains Matter suggested perhaps by the Council or Sollicitor without the Privity of the Party But per Curiam the Copy of the Bill shall be read as Evidence for it shall not be intended it was preferred without the Privity of the Party and it being disclosed by the Party himself otherwise they would not allow a Bill in Evidence if there be not Answer and other Proceedings upon it Siderf p. 220. Dr. Crawley's Case But at a Tryal the Plaintiff to prove his Bond offered a Bill by the Defendant in Chancery which Keeling Chief Justice held good Evidence as in the Parson of Amersham's Case Dr. Crawley where a Bill by P. a Simoniac to be relieved against his Bond was admitted against himself this being the Drift of the Bill and not any particular Allegation But the Court would not allow it Where an Answer in Chancery shall be good Evidence at a Tryal or not In a Tryal at Bar between Mills and Bernardiston an Answer of L. M. surviving Trustee under whom the Plaintiff claimed was offered for Evidence but being after a Conveyance by him the Court refused but had it been before it would be good against all claiming under him Answer ' good Evidence against the Defendant himself but not against other Parties But Twisden denied it because an Answer does not discover the whole Truth and therefore shall be only admitted against the Party himself that made it and not of one Defendant against another much less against a Stranger 2 Car. 2. B. R. And by Ley Chamberlain and Dodderidge a Defendant's Answer in an English Court is a good Evidence to be given to a Jury against the Defendant himself but it is no good Evidence against other Parties Godb. Case 418. 2 Rolls Rep. 311. Berisford and Phillips And if the Defendant's Answer be read to the Jury it is not binding to the Jury and it may be read to them by the Assent of the Parties Godb. 326. An Infant answered a Bill in Chancery by his Guardian Infant 's Answer by Guardian not to be read in Evidence against the Infant and it was a Question in Leigh and Ward 's Case in a Tryal at Bar in Ejectment where the Infant was Party whether that Answer could be read in Evidence against the Infant This Question was sent from the King's Bench by Justice Eyres to the Common Pleas to know their Opinion and per totam Curiam it could not be read for there is no Reason that what the Guardian swears in his Answer should affect the Infant 2 Ventr 1 William and Mary Where and in what Cases Depositions shall be read at a Tryal and where not Regularly the Depositions in Chancery or Exchequer Depositions no Evidence if the Party be alive of a Witness shall not be given in Evidence if he be alive But if Affidavit be made that he is dead they shall in a Cause between the same Parties Plaintiffs and Defendants Godb. p. 193. Sir Francis Fortescue Depositions taken in Chancery in perpetuam rei memoriam Depositions no Evidence without an Answer put in upon a Bill for that purpose exhibited cannot be given in Evidence in a Tryal at Law unless there be an Answer put in and produced Hardr. 336. Raymund Watts's Case Depositions taken before Commissioners of Bankrupts Depositions before Commissioners of Bankrupts no Evidence at a Tryal shall not be used as Evidence at a Tryal altho' the Witnesses be dead but Depositions taken before the Coroner with Proof that the Party made them if dead shall be good Evidence P. 18 Car. 2. Bick and Browning Exemplification of Depositions under the Great Seal Exemplificat ' 〈◊〉 Depositioâ—â— 988. whereby a Conveyance made
the Remainder to the Heirs of the Body of the Husband the Husband makes a Feoffment in Fee with Warranty and takes back an Estate to him and his Wife for their Lives the Remainder over to make a Remitter to the Wife there ought to be an Entry To make a Remitter there must be a new Entry Prout lex pestulat and no new Entry is found by the Special Verdict to be by the Husband but only prout lex postulat The Court advised a new Tryal and to amend the Special Verdict and to find the Entry of the Baron and Feme The time of the Entry of the Plaintiff is sometimes material as in Fort and Berkley's Case The time of the Entry of the Plaintiffs Lessor Per Cur. In that Case which way soever the Law had been taken Judgment could not have been given for the Defendant There was a Lease made to Godolphin in Reversion under whom the Plaintiff claims Chersey the Lessor of the Plaintiff did Enter upon the Possession of Berkley the Defendant but when he did Enter does not appear then the Case is Berkley was in Possession If the Lessor of the Plaintiff enter'd before the Term began he was a Disseisor as it was Dier 89. Clifford's Case But it s said he was possest prout lex postulat Prout lex postulat as so he was of the Reversion too it does not appear but that he was a Disseisor and so continued Carters Rep. 159 160. If the Title appear to be in a Stranger they must find an Ouster made to him who had the Right Where actual Ouster must be â—ound And therefore in Ejectione Firme If the Jury find a Special Verdict being matter in Law upon a Lease for years reserving Rent upon Condition c. but no Title is found for the Plaintiff nor Defendant but it is only found that the Lessor of the Plaintiff being a Stranger Enters into the Land and Leaseth this to the Plaintiff by which the Plaintiff was possest prout lex postulat until the Defendant entred and ejected him this is not a good Verdict the Title appearing to be a in Stranger without any actual Ouster made to him who had the Right 2 Rolls Abr. 699. Bland and Inman In an Ejectione Firme the Jury find a Special Verdict and find Special Matter in Law whether J. S. had right to the Land upon which the Court adjudged That he has right to the Land But they find farther Ouster Dissesin That J. D Entered into the Land upon J. S. and was thereof seized prout lex postulat and made the Lease to the Plaintiff and the Lessee was by force of this possessed and it is not found that J. D. disseised J. S. and for that upon this Verdict shall not be intended that J. D. oustred J. S. and disseised him and then the Entry of J. D. and his Lease is void and so an Action does not lie against a Stranger who had nothing in the Land as was Hitchin and Glover's Case In Ejectione Firme by the Lessee of a Colledge if the Jury find a Special Verdict in this manner viz. That the Colledge let this to A. upon Condition and found a Special Matter in Law whether the Condition be broken and that the Colledge supposing the Condition broken by their Bayliff entred Entry by a Colledge how to be found and let this to the Plaintiff this is not a good Special Verdict without finding of a command given by the Colledge to the Bayliff to Enter to be by Deed for otherwise it is not good 2 Rolls Abr. p. 700. Dumper and Simms A. was seised and demised to his Executors the Lands in Question for the performance of his Will till the Executors levy 100 Marks or until his Heirs pay to them 200 Marks and that the Executors after his Death entred and were possest prout lex postulat Prout lex postulat how far extend and being so possest granted to the Plaintiff who entred and was possest till the Ejectment This is uncertain because it is not found that the Heir had paid the Money Super totam materiam for they say super totam materiam and to say prout lex postulat is not an affirmation of any certain Possession Palmer 192. Langly and Paine Of the Juries finding by Parcels It is a Rule Verdict that finds part of Issue and no-nothing for the residue is insufficient A Verdict that finds part of the Issue and nothing for the residue is insufficient As in Pemble and Sterne's Case Raym. 165. The Demise is laid of a Park Messuage 300 Acres of Land and the Verdict finds only as to parcel and nothing of the residue for the Plaintiff or the Defendant the Verdict is void so is the Rule 1 Inst p. 227. A Verdict that finds part of the Issue and finding nothing of the residue it is insufficient for the whole because they have not tried the whole Issue wherewith they are charged Car. Jac. 113. Ejectione Firme of a Lease of Messuages 3000 Acres of Land 3000 Acres of Pasture in D. per nomina of Monkhal and 5 Closes per nomina On Not guilty the Jury gave a Special Verdict viz quoad 4 Closes of Pasture containing by Estimation 2000 Acres of Pasture that the Defendant was Not guilty Quoad resid quoad resid they find the matter in Law this Verdict is imperfect in all for when the Jury find that the Defendant was Not guilty of 4 Closes of Pasture containing by Estimation 2000 Acres of Pasture it is not certain and it 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 a Venire fac ' de novo was awarded A Verdict of more than declared for Woolmer and Caston's Case But if the Verdict be of more than declared for it shall be void for the residue As Ejectment for him who pleaded all of 14 Acres and the Jury find Guilty of 20 Acres 14 Acres The Plaintiff shall have Judgment for the and the Verdict shall be void for the residue 2 Rolls Abr. 707. 719. Seabright's Case In Ejectment of a Manor and so many Acres as includes the Manor the Jury find for the Plaintiff as to the Manor praeter the Services and as to the Services Not guilty And Judgment pro Quer. Here are 2 manifest Errors 1. When the Court is of a Manor the Jury cannot find for the Plaintiff for that which is not a Manor and there is none that brings Ejectment of a Manor Ejectment of a Manor how to be brought but they also add the Acres that contain it to the end that if they prove it not a Manor they may recover according to the Acres but they must enter it so but not as here generally of both 2. The Verdict being as much as the Count the Judgment against the Plaintiff cannot be
in Misericordia if it be supposed good The Court held them to be manifest Errors and assignable by the Defendant Hob. 108. Latch 61. Cr. Jac. 113. 1 Keb. 110. Hammond and Conisby But I conceive that is not Law for in Hammond and Conisby's Case Ejectione Firme was of a Manor upon Not guilty there was a Verdict pro Quer. for the Manor and quoad the Services Not guilty Error was assigned because the Verdict is not for the Plaintiff for the Manor because as to the Services it is for the Defendant Surpluse in a Verdict But per Cur. The last part of the Verdict shall be taken general for the Plaintiff Sid. 232. Ejectione Firme of a Messuage On Not guilty the Jury find the Defendant guilty of 2 parts of the House It was alledged in Arrest of Judgment That the Verdict has not found the Defendant Guilty according to the Count which is of a Messuage an entire thing Manwood contra Omne majus continet in se minus but if the Declaration had been of 2 parts of a Messuage and on Not guilty the Jury had found him Guilty of the entire House The Plaintiff shall not have Judgment Savill 27. In Ejectione Firme of a Messuage if it be found that a little part of the House is Built by incroachment upon the Land of the Plaintiff and not the Residue yet the Plaintiff shall recover for this parcel by the name of an House It 's laid down positive in Ablett and Skinner's Case in Sid. The Verdict may be of fewer parts than the Declaration p. 229. that the Verdict may be of fewer parts than in the Declaration As on Tryal at Bar in Ejectment the Declaration was of a fourth part of a fifth part in five parts to be divided and the Title of the Plaintiff upon the Evidence was but of a third part of a fourth part of a fifth part in five parts to be divided which is but a third part of what is demanded in the Declaration It was said the Plaintiff cannot have a Verdict because the Verdict in such Case ought to agree with the Declaration but per Cur ' the Verdict may be taken according to Title and so it was But Qu. how the Habere fac ' shall be executed If the Verdict in Ejectment contain more than the Declaration If the Verdict contain more than the Declaration the Plaintiff may release his Damages the Plaintiff may release the Damages Q. if he may release part of the Land Sid. p. 412. Ejectione Firme of the Manor of Dale on Non Culp ' pleaded the Jury find quoad unum Messuagium parcel ' As to a Manor Manerij praedict ' guilty quoad resid Not guilty It is moved he cannot have Judgment the Action is brought of the Manor and the Jury find him guilty of one House only so he cannot have his Judgment according to his demand So Delabar and Hudlestone's Case Ejectment of a Rectory and upon Non culp ' pleaded the Defendant was found guilty of Tythes without the Glebe and he could not have Judgment the Glebe being the Principal So Ejectione Firme of a Manor and proves only the Rents he shall not have Judgment Ejectment was of an House the Special Verdict was That the Plaintiff was seised in Fee and if there be several things laid in Ejectione Firme If several things are laid in Ejectione Firme and the Jury find the Defendant guilty in one the Plaintiff shall have Judgment of that as House Garden c. and the Jury find guilty of one only the Plaintiff shall have Judgment of this In Delabar's Case it was not found that the Tythes were parcel of the Rectory and so it differs from this Case In Ejectione Firme of a Manor and ten Acres it is no Plea that the ten Acres are parcel of the Manor aliter in Entry in the nature of an Assise Adjornatur The Jury find the Defendant guilty of one Moiety and for the other Moiety a Special Verdict this is no Error for the Jury may conclude upon the Moiety Where the Jury may conclude upon a Moiety or not for it may be he entred into one Moiety and not into the other but if he declares upon the whole they cannot find him guilty of a Moiety 3 Bulstr. 229. Milward and Watts But if one declares in Ejectione Firme upon a Fence made in certain Lands and he has Title but for a Moiety the Jury are not to conclude upon the Moiety for they are not to judge upon this but the Court. Where a dying seised or possest must be found A Man by his last Will and Testament devised all his Fee-simple Lands whatsoever to his Brother on Condition he suffer his Wife to enjoy all his Free Lands in H. duâ—ing her Life and the Jury found the Testator had only a Portion of Tythes in H. but they did not find the Testator died seised of the Tythes which without doubt had been ill upon the Demurrer And Rolls said He would see the Notes by which the Special Verdict was drawn up if that could help it For they all agree the Verdict ought to have found the Dying seised Stiles Rep. 279. Saunders and Rich. In Ejectione Firme if the Jury find a Special Verdict That J. S. was seised of the Manor of D. in his Demesne as of Fee of which Manor of Copyholder in the place where c. does waste by the cutting down an Oak and that after J. S. dies and the Lessor of the Plaintiff being his Cousin and Heir enters into the Manor and into the Place where c. for the said Forfeiture and was of this seised in his Demesne as of Fee and concludes si super totam materiam c. this is not a good Verdict because it is not found that J. S. died seised of the Manor and that this discended to the Lessor as his Cousin and Heir for it may be J. S. aliened the Land and that the Father of the Lessor or the Lessor himself might repurchase it and that he was also Cousin and Heir to J. S. for although it be in a Verdict yet it shall not be intended that the Fee continued in J. S. at his death and that he died seised thereof without finding of it P. 1 Car. 1. Cornwallis and Hammond Of Uncertainty in Special Verdicts As to Persons As to Acres and Parcels As to the Place or Vill. As to time As to Persons One deviseth all his Lands to E. his Wife for Life the Remainder to F. his Daughter in Tail the Remainder to the eldest Son of William his Brother in Tail Remainder over E. enters F. dies without Issue they find Gertrude Cousin and Heir to F. who levied a Fine but they find not Gertrude was Heir to the Devisor Do not find Heir and it may be althô F. was the Daughter the Devisor might have a Son or that she was Heir to him by a second Wife yet
Cost 1 Ventr 124. Adminstrator brought a Writ of Errorupon a Judgment given in Ejectment against the Intestate Per Cur ' he shall pay no Costs tho' the Judgment was affirmed and the Writ brought in Dilatione executionis 1 Ventr Writ of Inquiry It was assigned for Error That a Writ of Enquiry of Damages was awarded and no day given to any of the Parties to be there at the time of the Retorn The Entry for the Entry ought to be Ideo dies datus partibus praedictis or at least to the Plaintiff that so he might then pray his Judgment sed non allocat ' for the Defendant is not to have day and the Plaintiff is to attend at his Peril and so is the Course of the Common Pleas aliter in the King's Bench Cro. El. p. 144. Mathew and Hassel E. in Ejectione Firme had Judgment by Default against the Defendant whereupon a Writ of Enquiry issues out to enquire of the Damages and before the Retorn thereof the Defendant brought a Writ of Error the Question was Whether the Writ of Error were well brought in regard the Course of the Common Pleas is not to make up the Judgment until the Writ of Enquiry be retorned Rolls said A Writ of Error may be brought before the Writ of Enquiry be retorned in Ejectione Firme for in that Action the Judgment is compleat at the Common Law before it be retorned for the Judgment is but to gain Possession and so it is in a Writ of Dower But in an Action of Trespass where Damages are only to be recovered there the Judgment is not perfect till the Writ of Enquiry be retorned nor can be made up as in this Case it may But in regard that here is no compleat Judgment for there is no Capias which ought to be in all Actions Quare vi armis that the King may have his Fine which else he cannot have if the Party do not proceed in his Writ of Enquiry the Writ of Error is brought too soon and you may proceed to Execution in the Common Pleas for the compleat Record is not here Afterwards in another Case Rolls was of Opinion That it was a perfect Judgment and it is in your Power said he to the Defendant's Council whether you will have a Writ of Enquiry or not and if the Judgment be affirmed here upon the Writ of Error brought you may have a Writ of Enquiry in B. R. the Council therefore moved for a Certiorari Rolls take it but it will do you no good for the Judgment is well Stiles Rep. Glide and Dudenu's Case p. 122. Crook and Sanny Stiles 127. The Writ of Error lies upon the Judgment before the Retorn of the Writ of Enquiry and why This Point is setled now in both Courts In Ejectione Firme if the Plaintiff recover by Nihil dicit in which Judgment is given that the Plaintiff shall recover his Term and a Writ is awarded to enquire of Damages a Writ of Error lies upon this Judgment before the Retorn of the Writ of Enquiry of Damages and Judgment upon it for the Judgment is perfect as to the Recovery of the Term before by the first Judgment and the Plaintiff may presently have Execution for the Possession and peradventure he never will have Judgment for the Damages and so the Defendant shall be ousted of his Possession sans Remedy So it is if a Man recover in Ejectione Firme by Confession or non sum informatus or Demurrer a Writ of Error lies before the Damages taxed by Writ of Enquiry 1 Rolls p. 750 751. Newton and Terry Taverner and Fawcet Booth and Errington 5 Rep. Wymarth and House and Layton Latch p. 212. Council prayed Abatement of a Writ of Enquiry on 16 and 17 Car. Abatement by Death after Judgment or pendant Error but not after Affirmance 2. c. 8. by Affidavit of Cesty que vie's Death after the Judgment two days and by the Act from the Judgment affirmed in Error which was a Term after which the Court granted But it were better the mean Profits were recoverable in Ejectment by the same Verdict Wild held this should be given in Evidence on the Writ of Enquiry but being no Bar but in mitigation that is not sufficient and it was staid Warren and Orpwood M. 25 Car. 2. B. R. 3 Keb. p. 218. CHAP. XIV Of Judgment in Ejectment and Execution The Form of entring Judgment in this Action How the Entry is when part is for the Plaintiff and part against him How against several Ejectors The Form of the Entry in case of Death of the Plaintiff or Defendant After Verdict and before Judgment the Plaintiff dies Ejectment for the whole and no Title but to a Moiety For what Causes Judgments in Ejectment are arrestable or erroneous In what Cases Judgment shall be amended Of Judgment against ones own Ejector NO Judgment in Ejectment till Latitat filed Note and Bail 2 Keb. 743. The Form of entring Judgments in this Action In Cr. Quod recuperet possessionem termini El. 144. Matthew and Hassel's Case It was assigned for Error That the Judgment was Quod recuperet possessionem termini praedict ' where it should be Quod recuperet terminum for as in a Real Action he is to recover Seisin so in a Personal he is to recover Possession and the Writ is habere fac ' possessionem 1 Leon. p. 175. mesme Case All the Course of Entries How the Entry is when part is made pro Quer ' and part against when part is found for the Plaintiff and part against him is to enter only Quod Def. eat inde sine die quoad c. whereof he is acquitted It was Taylor and Woldboro's Case Cr. El. 768. Error of a Judgment in Ejectment was brought because the Defendant was found Not guilty quoad a third part and the Judgment is entred thereupon Quod Def. eat inde sine die quer ' in misericordia c. whereas it ought to have been Quod le Plaintiff nil capiat per Billam for that third part sed non allocatâ—r causa qua supra Cro. El. 768. and the Court would have affirmed the Judgment but because the Plaintiff had not appeared that Term they caused him to be nonsuited In 1 Rolls Rep. Quod Def. sit quietus 51. Error was assigned because the Judgment in Ejectione Firme in Wales was Quod Def. sit quietus such Judgment being only given in a Writ of Right and such Actions which are final but this Action is not final and the Judgment should be Quod Def. eat inde sine die Sir William Morris and Cadwallader's Case In Ejectione Firme Quod Def. remaneat indefens ' if upon Non sum informatus pleaded Judgment be given Quod Def. remaneat indefensus without saying versus querent ' yet its good 1 Rolls Abr. 772. Fiegot and Mallory Ejectment was against several Defendants Against several Ejectors c.
they were fined severally where the Ejectment was against them all joyntly but because they were found several Ejectors of several Parcels the Judgment was good scilicet quilibet capiatur quoad his Parcel and if it had not been joynt it had not been been sufficient Bendl. 83. Darcy and Mason The Plaintiff shall be in Misericordia but once The Plaintiff shall be in Misericordia but once As Ejectment with Force three of the Defendants were found Guilty of the House and ten Acres of Land and Not guilty for the Residue The fourth Defendant is found Not guilty generally And Judgment was entred That he should recover his Term in the House and ten Acres of Land and Costs against the three Defendants and that the said three Defendants capiantur and that they be acquitted quoad residuun and that the Plaintiff quoad the three Defandants pro falso clamore for so much as they were acquitted pro falso clamore against the fourth Defendant sit in Misericordia It s good enough and the course that the Plaintiff in such Cases be in Misericordia but once which is specially entred Crok Car. 178. Dockrow's Case In Croke and Sam 's Case Stiles 122. 346. The Judgments was ideo considerat ' est qd recuperet and there wants Def. capiatur it is Erroneous Form of the Entry in Case of the Death of the Plaintiff or Defendant Note That 3 Plaintiffs in Ejectment were and on general Issue it was found for the Plaintiffs One of the Plaintiffs died during a Curi advisare And 4 days after the Verdict given was moved to stay Judgment a Special matter in Law whereof the Justices were not resolved and gave day over and in the mean time one of the Plaintiffs died This shall not stay Judgment for the Postea came in 15 Pas which was the 16 of April at which Day the Court ought to give Judgment presently But Cur. advisare vult and on the 19 of April one of the Plaintiffs died and the favour of the Court shall not prejudice for the Judgment shall have relation to the 16 day of April at which time he was alive 1 Leon. 187. Isley's Case In Ejectment two Defendants were found Guilty The Death of one Defendant shall not abate the Writ and the other not The one that is Not guilty dies The Plaintiff shave Judgment against the other So it is if he that is Dead had been Guilty because this Writ is but as a Trespass where the Death of one Defendant shall not abate the Writ Moor 469. 673. Griffith and Lawrence's Case Ejectione Firme against Baron and Feme Ejectione Baron and Feme Baron dies And Verdict pro Quer. and after between the Verdict and day in Banco the Baron dies and therefore the Court in Lee and Rowley's Case 1 Rolls Rep. 14. advised the Plaintiff to relinquish this Action and only to enter the Verdict for Evidence for if Judgment is given against the Defendant and one is dead at the time of the Judgment then this will be Erroneous per Dodderidge and Mann Preignotary But Coke said The Plaintiff may make allegation that the Husband is dead and shall have Judgment against the Wife And it hath been adjudged lately Ejectment against Baron and Feme which are but one person in Law yet if the Husband dies the Suit shall proceed against the Wife Hardr. 61. But in Rigley and Lee's Case Cr. Jac. 356. Ejectment against Baron and Feme after Verdict Baron dies before the day in Banco because it is in the nature of a Trespass and the Feme is charged for her own fact Per Cur. The Action continues against the Wife and Judgment shall be entred against herself because the Baron was dead Ejectment against divers Record where not to be amended all plead Not guilty and divers Continuances were between them all where revera one of the Defendants was dead after Issue joyned and a Verdict was after found pro Quer. and the Record was moved to be amended Per Cur. we cannot do it After Verdict and before Judgment the Plaintiff may surmise that the Defendant was dead before the Verdict and Continuance was against him One Defendent dies after Issue joyned as in full Life Jones 410. Sir John Fitzherbert versus Leech And In Ejectment to try the Custom of Copyhold Suggestion entred on the Roll one Defendant being dead after Non-suit The Plaintiff was Non-suit and one of the Defendants being dead Hales Chief Justices advised to Enter a Suggestion on the Roll that one was dead else the Judgment for the Defendants on the Non-suit will be Erroneous as to all M. 23 Car. 2. B. R. Hawthorn and Bawdan Ejectment was brought against seven Ejectment against seven and one dies hanging the Writ and Error brought one dies hanging the Writ and the Judgment was given against the six without speaking any thing of the seventh where the Judgment ought to be against them that were in Life and a nil cap. as to him that was dead Otherwise there is a variance between the Writ and Judgment And a Writ of Error was brought but it was not well brought for the seventh joyned in the Writ of Error which was ad grave damnum of all the seven But had it been omitted ad grave damnum of him that was dead it had been good 2 Rolls Rep. 20. Bethell and Parry Pal. 152. Mesme Case In Hide and Markham's Case it was Ruled After Verdict and before Judgment the Plaintiff dies and Judgment his given for him the same Term. That if one bring Ejectione Firme in B. R. and there had a Verdict in a Tryal at Bar and after before Judgment he dies and after the Judgment is given for him the same Term this is not Error for that the Judgment shall relate to the Verdict But if the Verdict pass against the Plaintiff at the Nisi prius and after before the Day in Bank he dies and after Judgment is against him this is Error for as much as Judgment is given against a dead Man 1 Rolls Abr. 768. and Jurdan's Case ibid. The Plaintiff in Ejectment dies ' The Plaintiff dies after Verdict and Judgment was not staid and why Addison's Case Mod. Rep. 252. Yet as that case was the Court would not stay Judgment for between the Lessor of the Plaintiff and the Defendant there was another Cause depending and tried at the same Assizes when this Issue was tried and by Agreement between the Parties the Verdict in that Cause was drawn up but agreed it should ensue the Determination of this Verdict and the Title go accordingly Now the submission to this Rule was an implicit Agreement not to take advantage of such occurrences as the death of the Plaintiff whom we know no ways to be concerned in point of Interest and many times but an imaginary person Per Cur. We take no notice judicially that the Lessor of the Plaintiff
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