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
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
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
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