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
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
THE LAW OF EJECTMENTS OR A TREATISE SHEWING The Nature of EJECTIONE FIRME the Difference between it and Trespass and how to be brought or removed where the Lands lie in Franchises In what Cases this Action lies or not Of the Old Way of Sealing Leases and of the New Practice Of Confessing Lease Entry and Ouster Of what things Ejectione Firme lies or not Of Declarations in this Action and what Special Pleadings are now in use Of Venues Issue Trial. As also Who are good Witnesses or not in the Trial on Ejectment and what shall be allowed good Evidence or not either as to Records or Matters in Fait Where Bills Answers and Depositions shall be read on a Trial or not Together with The Learning of Special Verdicts at large relating to Titles of Land and Estates in several Rules and of Judgments with their several Forms of Entries in Special Cases and of Habere facias possessionem how to be executed and in what Cases a new Habere fac ' possessionem shall be granted And lastly of Erroneous Judgments and Writs of Error and several other Matters all relating to Actions of Ejectments Very necessary for all Lawyers Attornies and other Persons especially at the Assises c. LONDON Printed for Iohn Deeve at Bernards-Inn Gate in Holbourn 1700. THE PREFACE TO THE READER UPon the first View of the Title of this Treatise I doubt not but many Persons will slight it being upon a Topick well known and understood as they imagine by even every Pretender to the Law There 's not the least Sollicitor or Attorney in any Nook of Cornwall or Corner of Cumberland but thinks he is privy to the whole Learning of Ejectments And yet if they would take the Pains to peruse the ensuing Sheets they doubtless may be of another Opinion and will find very useful and proper Matter relating to an Action which concerns the greatest Titles in the Kingdom and has made so great a Noise at the Barr and in the Circuits for Sixty Years last past Besides if there happen any material Mistake in this Action the Remedy is very chargeable I remember Mr. Levett's Case of the Inner-Temple the Argument whereof made by a very Ingenious Professor of the Law I have herein inserted The Record was an Issue of Trinity Term 1696. and the Demise is laid the 10th of April 1697. Habendum from the 25th day of March then last past whereas the Demise should have been laid the 10th of April 1696. And tho' Mr. LeveTt had a Verdict yet he could not have Judgment but was forced to a new Trial at Bar. And many more such Instances might be given I shall not dare to deliver my Opinion concerning the Change of Real Actions into Ejectione Firme but I know many Grave Lawyers have grumbled at the Inconveniencies of a Man's being too obnoxious to be trickt out of Possession However this we must all allow That since the said Alteration the Common Law hath lost a great Part of the Beauty and Nicety of its Pleading I have been large under two of the ensuing Titles I mean that of Evidence and the other of Special Verdicts Who shall be allowed as good Witnesses or not and what shall be lookt upon as sufficient Evidence both as to Matter of Record or Matter en Fait in this Action is of great Vse to be understood and the Cases that lay disperst in our Books for that purpose I have reduced to some Method And as for the right and exact drawing of Special Verdicts we all own it to be an undeniable Argument of a good Vnderstanding in the Law and of very great Consequence especially those which concern Title of Lands and Estates As for the Errata's of the Printer the Judicious Reader will find that they will not much interrupt the Sense and as for my own I humbly beg Pardon THE CONTENTS OF THE CHAPTERS CHAP. I. THE Nature of the Action of Ejectione Firme and the Reason of the change of Real Actions into Ejectments with the Lord Chancellor Ellesmore's Opinion thereon The Difference between Actions of Trespass and Ejectment in seven Diversities The Difference between Ejectione Firme and Quare ejecit infra terminum In what Court this Action to be brought or not Ejectments how to be brought in respect of the Place where the Lands lie Where to be tried Of Removal by Procedendo into inferiour Courts CHAP. II. Who shall have Ejectione Firme and in what Cases this Action lies or not in respect of Possession in respect of Entry congeable in respect of Exility of Estate By Lessee of Copyholder and how and whether before Admittance and the manner of declaring Of Ejectment by Executors by Infant by Lessee of a Simonist On Elegit On undue Extent and in case of holding over By Intruder by the King's Lessee by a Person Outlawed by Lessee of Bail on Extent and on Judgment against the Principal by Issue in Tail liable to a Statute who comes not in and pleads to the Sc ' fac ' on Entry of the Grantee of Rent with Proviso for Retainer till Satisfaction of Arrears by Cesty que Trust by Vendee of Commissioners of Bankrupts CHAP. III. Of Process in Ejectione Firme Of the Original What Mistakes in the Original are Error after a Verdict or not Of a vicious Original Of the want of an Original Of an Original taken out before the Cause of Action Of Amendments of Originals Where Amendment shall be by the Paper-Book Of the Retorn by Stat. 13 Car. 2. c. 11. Of Appearance Infant how to appear sue or defend The true Difference between Guardian and Prochein Amy. Of want of Pledges Of Bail Of Stat. 13 Car. 2. c. 2. Of Bail on Writ of Error VVhen common Bail to be filed Imparlance CHAP. IV. Against whom Ejectione Firme lies or not Of the casual Ejector Of the old way of Sealing Leases of Ejectment and in what Cases now to be used And of the new way of practise CHAP. V. Of the Rule of confessing Lease Entry and Ouster Whether such Rules may be made in inferiour Courts Rules of Court relating to confessing Lease Entry and Ouster Of Refusal to confess Lease Entry and Ouster and the Consequence Of how much the Defendant shall confess Lease Entry and Ouster In what Cases there must be an actual Entry and where it is supplied by confessing of Lease Entry and Ouster Rules concerning ones being made Defendant and of altering the Plaintiff of enlarging the Ejectment Lease CHAP. VI. Of what things an Ejectione Firme may be brought and of what not General Rules of Declarations in Ejectments Of Variance between the Issue-Roll and the Imparlance-Roll Of Entry and Ejectment supposed before the Commencement of the Lease Virtute cujus He entred how expounded Uncertainty in the Limitation of the Commencement and no Day of the Date shewed Et postea how expounded Mr. Levets of the Temple's Case Argued about amendment of a Declaration Declaration by Coheirs by Tenants
' this is good but if it were in Ejectione the Verdict had been ill for it is not certain in what part the Plaintiff shall have his Habere fac ' possessionem Yelv. 114. Ejectione Firme and Trespass of Battery were both in one Writ Note Ejectione and Trespass for Battery both one Writ and upon Not guilty Verdict was given for the Plaintiff both for the Ejectment and for the Battery and intire Damages Q. of the Judgment for the Damages for the Battery could not be released because they were entire with the Ejectment Hob. 249. Bird and Snell Ejectione Firme against a Baron and Feme which are but one Person in Law yet if the Baron dies the Suit shall proceed against the Wife for it is in the nature of a Trespass Hardr. 161. Of the Difference between Ejectione Firme and Quare ejecit infra Terminum Ejectione Firme lies against the immediate Ejector but Quare ejecit lies against him who has Title as against him in Reversion 7 H. 4. 6. b. Ejectione Firme is vi armis the other is not Quare ejecit infra Terminum lies against him who is in by Title as against the Vendee of the Lessor but Ejectione Firme is against him that is the wrong Doer In Ejectione Firme if the Term expire hanging the Action this shall not abate the Writ but the Plaintiff shall have Judgment for his Damages aliter in Quare ejecit infra Terminum Note No Ejectione Firme was brought against a Stranger before 14 H. 7. At Common Law the Lessee had no Action but of Covenant against his Lessor or Ejectione Firme The Quare ejecit infra Terminum is given by the Stat. W. 2. c. 24. for Recovery of his Term against the Feoffee for Ejectione Firme lies not against him because he came to the Land by Title of Feoffment 〈…〉 In what Court this Action is to be brought or not and of Removal by Procedendo to an Inferiour Court It lies in B. R. and Banco Communi It lies in the Exchequer and for a Party priviledged by Bill 1 Rep. 3. Pelham's Case Note Where the King's Revenue is concerned the Ejectment ought to be brought in the Exchequer In the Exchequer as if a Man claims Title to Lands of a Person outlawed Ejectione Firme was brought in the Exchequer by Garroway against R. T. upon an Ejectment of Lands in Wales and it was maintainable as well as Intrusion on Lands in Wales upon the King himself Upon Ejectment brought in the Court of Common Pleas by the Defendant in the Exchequer the Plaintiff moved that the Action might be laid in the Exchequer because his Title was under an Extent out of this Court for Debts in Aid and so it was ordered Hardr. p. 193. Sir Ralph Banks and Sir Tho. Bennet Hardr. p. 176. Hammond's Case Godb. 1. 296. Case 416. This Action lies not in the Marshalsea 10 Rep. 72. It lies in the Court of Ancient Demesne How Ejectment lies in Ancient Demesne if it be of Ancient Demesne Lands and not in the King's Courts and therefore in Ejectione Firme brought above Ancient Demesne is a good Plea Vid. infra Tit. Pleading 5 Rep. 105. Alden's Case Ejectione Firme depends in B. After a special Verdict found in G. B. the Plaintiff may bring a new Ejectment in B. R. aliter of the Defendant C. and a special Verdict is found The Plaintiff may bring a new Ejectment in the King's Bench and it shall not abate for it 's no Inconvenience to any Person the same being Plaintiff here and there but if the Verdict had been for the Defendant in the Common Bench then the Plaintiff cannot bring a new Action in B. R. till Possession be given in Baneo Communi according to the Verdict Tr. 17 Car. 2. B. R. Shepard and Griffith By Twisden in Crisp and Jackson's Case Ejectment will not lie of Land in Jamaica and why the Reason why Ejectment will not lie of Lands in Jamaica or in any of the King 's Foreign Territories was because the Courts here could not command them to do Execution there for they have no Sheriffs 1 Ventr p. 59. Tr. How Ejectments to be brought if the Lands lie in Middlesex or London Not removable by a Procedendo to a Franchise 14 Car. 2. It was ordered in B. R. that in every Action of Trespass and Ejectment to be brought after that time in the King's Bench if the Land did lie in the County of Middlesex then a Bill of Middlesex should be brought and if the Lands lay in London then a Writ of Laitat should be taken out against the casual Ejector named Defendant in every such Action If Ejectione Firme be removed from an Inferior Court by Habeas Corpus into the King's Bench it is not removable by Procedendo to a Franchise as Oxon Pole Canterbury c. which only hold Plea of personal Actions but in this Action he shall recover Possession and have a Writ of Habere fac ' possessionem and thereby he that hath a Freehold may be put out of Possession And in Sabin's Case M. 13 Car. 2. B. R. Ejectione Firme was brought in the City and County of Canterbury Procedendo denied because Bail was put in B. R. and removed into the King's Bench by Habeas Corpus and a Procedendo was prayed but because Bail was put in in B. R. the Court denied the Procedendo because they were thereby seised of the Cause Cro. Car. 87. Halley's Case M. 13 Car. 2. B. R. Sabin's Case Siderfin p. 231. Now in such Cases of Franchises as Canterbury Oxon the Cinque-Ports c. they suppose the Lease elsewhere in the County To be tried where it s supposed the Lease is made and it shall be tried where it 's supposed the Lease to be made and so by Wild in Sabin's Case Upon Ejectment in the County of Canterbury one may declare upon a Demise in any part of the County of Kent and so try it at Maidstone Canterbury for the Venire comes always from the place of the Demise which was denied by Windham the Body of the County being as another County from that of Canterbury But the reason why the Court denied a Procedendo in Allen and Burney's Case was because the Plaintiff below had not actually sealed a Lease as he ought to have done being an Inferiour Court M. 18 Car. 2 B. R. Allen and Burney Action was brought in the Court of the Marches of Wales in nature of Ejectione Firme Marches of Wales and a Prohibition granted because they are not to meddle with the Possessions of Men unless in respect of force plena Curia 2 Rolls Rep. 309. CHAP. II. Who shall have Ejectione Firme and in what Cases this Action lies or not in respect of Possession in respect of Entry congeable in respect of Exility of Estate By Lessee of Copyhold and how and whether before Admittance and the manner of declaring Of
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
it was ruled to be Error in the Exchequer-Chamber in the Bishop of Landaff's Case A Tryal by Consent in other County than where the Land lies is good in Ejectment But in Sir Thomas Jones's Rep. Devoren and Walcot's Case it is held That a Tryal by Consent upon the Roll in other County than where the Land lies is good in Ejectment 1 Rolls Abr. 787. 2 Keb. 260. Sir Thomas Jones 199. Devoren and Walcott In an Ejectione Firme in London upon a Lease made of Lands in Middlesex Tryal in London of Lands in Middlesex if the Defendant plead Not guilty this may be tried in London because the Counties may not joyn altho' the Jury ought to enquire of the Ejectment which was in Middlesex 2 Rolls Abr. 603. Herbert and Middleton But in Flower and Standing's Case in Ejectment Moved in Arrest of Judgment that the Lease was made at B. of Lands in another County and the Plaintiff was not in Possession it was moved in Arrest of Judgment That the Lease is made at B. of Lands in another County which was moved to be ill it appearing that the Plaintiff was not in Possession sed non allocatur for this is matter of Evidence and it shall be intended it was after Verdict and so is the common Course M. 20 Car. 2. B. R. In Ejectment one may not have Priviledge of Tryal of Lands in Wales in the English County next adjoyning In the King's Case 〈◊〉 shall be in the Exchequer tho' the â—and lie in Wales for they are to be tried in the County where the Land lâ—es otherwise it is if the King be Party it 〈◊〉 be tried in the Exchequer This Action was brought by one of the Ushers of the Exchequer by Priviledge Savile 10 12. Ejectment is brought against one in Custodia in B. Tryal by Mittimus in the County Palatine R. of Lands in the County Palatine and the Action was laid in B. R. and the Record was sent down by Mittimus from B. R. and a special Indorsement of the Postea and thereof one prayed Judgment against his own Ejector in an Action of Lands in the County Palatine of Chester which the Court granted because when the Defendant hath pleaded to Issue they may try it by Mittimus in the County Palatine Redvish and Smith's Case M. 15. 2 Car. B. R. Holloway and Chamberlen Action on the Case on feigned Issue out of Chancery Per Twisden Justice the Lands being in the Isle of Wight and the Jury of Surrey this Tryal is not allowable to try Conveyata or not this being a Windlace to try Ejectments in another County But in 1 Ventr 66. a Title of Land was tried out the proper County upon a feigned Wager whether well conveyed or not this is the usual Course of Issues directed out of Chancery 2 Keb. 634. Meres Case 1 Ventris 66. Who shall be good Witnesses in this Action or not It is agreed That a Trustee cannot be a Witness concerning the Title of the same Land Trustee the Interest in the Law being lodged in him But by Hales a Trustee may be a Witness against his Trust 2 Sid. 109. In Ejectment the Plaintiff challenged B. a Witness to a Devise because he was Trustee in a Will and had an Annuity but he having released both before the Suit the Court held him to be a good Witness or if he hath received it and tho' it be after the Action brought Sid. 315. Interest in Equity disables a Man to be a Witness Interest in Equity but one who hath an equitable collateral Title may be a Witness Parishioners may be a Witness to a Devise by which the Parish claims Lands to the Relief of the Poor Parishioners Exception was taken against a Witness produced to prove the Lease of Ejectment Witness had the Inheritance because he had the Inheritance in the Lands let but it was urged by the other side That the Defendant did claim under the same Person that the Plaintiff did and so the Witness was admitted to be sworn Stiles Rep. 482. Fox and Swann One Coparcener cannot be Evidence for another in Ejectment Coparceners because she claims by the same Title tho' she is not Party to the Suit but the Daughter of her Sister may be sworn for altho' she be Heir yet her Mother may give the Lands to whom she will being Fee-simple P. 13 Car. 2. B. R. Truel and Castel In Ejectment of Tythes the Plaintiff excepted against a Copyholder in Reversion after an Estate Tail Copyholder in Reversion after an Estate Tail for a Witness to prove the Boundary of a Parish and he was set aside for the possibility which makes him partial M. 20 Car. 2. B. R. Hitchcok's Case In Ejectment of the Manor of S. Trespass on Issue out of Chancery to try the Number of Acres the Defendant excepted to a Witness that had been a Trespassor as Servant to my Lord Lee in the Lands in Question an Action being depending The Court set him aside and thereupon the Plaintiff was Non-suited M. 20 Car. 2. B. R. Tuck and Sibley Exception was taken against a Witness to prove the Execution of a Deed by Livery and Seisin Estate at Will because he had an Estate at Will made to him of part of the Land but it was dissallowed vide Mod. Rep. 21 73 74 107. Hob. 92. In Ejectment at Tryal at Bar Executor of the grant of a Rent the Title of the Lessor of the Plaintiff was upon the Grant of a Rent with power to enter for Non-payment the Executor of the Grantor was produced as a Witness for the Defendant It was objected against him That in the Grant of the Rent the Grantor covenanted for himself and his Heirs to pay it and so the Executor being obliged he was no competent Witness 1 Vent 347. Cook and Fountain On on a Trial at Bar per Cur. If one of the Witnesses had part of the Lands in Question The Witness Sells part of the Lnd before Tryal and he sells or disposeth of it after his coming to London or at any time after he had notice of Trial he shall not be received to give Evidence tho' he sell bona fide and upon a valuable Consideration and althô he himself be not Occupier of the Land nor had been after the Writ purchased but another by his Commandment the Court will not suffer him to be a Witness because if Verdict pass against him he who acted by his Commandment may charge him in Action on the Case Witness claimed Estate by Title Paramount both there Titles but upon Examination it appering That the Witness claimed an Estate for Life by Title Paramount both their Titles viz. Plaintiff and Defendant he was Sworn Siderf p. 51. Wicks and Smallbrok's Case Exception was taken against a Witness to prove Execution of a Deed of Feofment by Livery and Seisin Two Witnesses were subscribed
Ejectione Firme 21 P. PEDIGREE Where allowed to be Evidence or not 164 Pernomen where it is material 71 96 Pleadings in Ejectment 109 PLADINGS Of Pleading in Abatement 110 Of Pleading to the Jurisdiction 113 Conusance of Pleas how to be demandâ—d allowed pleaded ibid. Where Conizance of Plea not allowed in Ejectment 115 Pleading Ancient Demesne 106 Conclusion of Plea 118 Plea puis Darraine Continuance 119 Bar or Recovery in one Ejectione Firme â—ow far a Bar in another 126 127 Two Defendants one confesseth and the â—ther Pleads in Bar he cannot leave the one â—nd proceed against the other 126 POSSESSION A good Title in Trespass but not in Eâ—â—ctment and why 6 In what Cases the Party before Entry â—ath Possession and a Fine and Non-claim all Bar his Right 14 Possession in the Lessor of the Plaintiff â—â—st appear to be within 20 years 15 Long Possession good Evidence 170 Et postea how expounded 73 Procedendo denied because Bail was put B. R. 12 What is Evidence to prove Land parcel a Priory or not ibid. Priority of Possession where and how a â—od Title or not 179 Prout lex postulat How expounded in Special Verdicts 181 197 Where primer Possession makes a Disseisin 185 In Ejectment prior Possession a good Title against the King's Presentation not so in a Quare Impedit ibid. Mean Profits Action for the Mean profits and whaâ— Evidence shall be given in this Action 251 Whether Lessee may have Action for the Mean profits from the confession of Leaseâ— Entry and Ouster 254 Q. The nature of a Quare Ejecit infra Terminum and the difference between it and Ejectione Firme 9 R. RECOVERY Recovery and Execution pleaded in former Action 12 In Ancient Recoveries the Court will noâ— put one to prove Seisin in a Praecipe 15 What Evidence will serve to prove a Recovery ibid. What thing a Parson in the Ejectment 〈◊〉 a Rectory may prove 16â— RENT Upon Entry of the Grantee of a Rent and Retainer till satisfaction of the Arrears he may upon such Interest quousque maintain an Ejectment 23 RELEASE Where the Plaintiff in Ejectment may aid himself by Release of part 50 Release pleaded on a Special Verdict and day given for Argument 120 S. Deprivation for Simony disables from bringing Ejectment 18 Stat. 13 Car. 2. c. 11. expounded 28. Stat. 21 Jac. 13 Car. 2. c. Bail Stat. 16 17 Car. 2. cap. 8. Of Amendment 84 Stat. W. 2. c. 27 139 Stat. 8 Eliz. of Costs 221 Stat. 3 H. 7. 10. Of Costs 224 T. TRES PASS Difference between Trespass and Ejectione Firme 5 Conusance of Trespass includes not Ejectments 7 Possession a good Title in Trespass not in ectment and why 6 Colour in Trespass 7 TRIAL Ejectment to be tried where it is supposed the Lease to be made 12 Tenant at Will may make a Lease for years to try Title and so may a Copy-holder 23 How Trials below in Ejectment are to be brought 39 Stat. 27 H. 8. the Marches 141 Consent to alter Trial entred upon the Roll 142 Consent to a Trial in a Foreign County ibid. Where issue in Ejectment shall be tried in other County than where the Land lies 144 145 146 Of Trial by Mittimus in a County Palatine 146 Where the Issue in Tail is liable to execution on a Statute of Scire facias returned and he comes not in and pleads he shall not bring his Ejectment 21 Of Ejectment being brought by Cesty que Trust 23 How a Trustee may be a Witness in Ejectment 146 V. Variance of the Evidence from the Declaration what are material Variances or not 170 Variance as Times 172 Acres 173 Vills ibid. VENIRE Of the Venire in Ejectment 132 133 134 Where a Vill and a Parish shall be intended all one 155 Where it shall come de Corpore comitatus 136 The Wife found Not guilty and a Special Verdict as to the Husband which was insufficient Venire fac ' de novo was awarded and why 138 VERDICT In what Cases no Verdict shall be entered 140 Of exemplification of a Verdict 175 Of a General Verdict 177 Of Special Verdict ibid. Of finding Deeds in haec Verba 178 Seven or eight Rules of Special Verdicts 178 179 c. The Special conclusion of a Special Verdict shall aid the Imperfections of it 186 Diversities between a General Conclusion and a Special Conclusion 187 How a Special Verdict may make a Declaration good ibid. The Judges not bound by the Conclusion of the Jury except in Special Cases 188 Verdict to be taken according to intent vid. Intendment A General Conclusion depends upon all Points of the Verdict 189 Where the dying seised shall be intended 192 Jury find the Interest of the Land but shew not how 193 All Circumstances necessary shall be intended ibid. Difference between the Limitation and Condition of an Estate as to the finding by Jury 194 Finding the substance of the Issue as sufficient Verdict by presumption 197 Where and in what Cases Entry must be expresly found or not and of the force of the words prout lex postulat 197 Where actual Ouster must be found 198 Entry by a Colledge how to be found 199 Super totam materiam the effect of it 200 Of the Juries finding by parcel ibid. Jury finds part of the Issue and nothing for the Residue ibid. Of Surplusage in a Special Verdict 202 If the Verdict contain more than in the Declaration the Plaintiff may Release the Damages 203 Where the Jury may conclude upon a Moiety or not 184 Where a dying Seised or Possest must be found 204 If Incertainties in Special Verdicts 206 As to Persons Acres ibid. Place Time Quoad residuum the operation of those words in a Special Verdict 208 209 Of Verdicts in other Lease or Place than declared 212 It must be certain in what part the Plaintiff must have his Habere facias Possessionem aliter in Trespass 209 Where and in what Cases Special Verdicts may be amended Virtute cujus he entred and saith not when 46 Virtute cujus ijsdem die anno he entred 66 67 Virtute cujus pretextu cujus the difference 72 Omission of Vi Armis in the Declaration 98 Where the Party comes in by Limitation of use he must say vigore statuti 215 W. Action in nature of Ejectment brought in the Court Marches of Wales Prohibition granted 12 How Collateral Warrants may be given in Evidence 165 WITNESSES Who shall be good Witnesses in Ejectment 147 How a Trustee may be a Witness or not 146 Interest in Equity disables a Man to be a Witness 147 In what Cases Parishouses may be Witnesses ibid. One Coparcener cannot be Evidence for another in Ejectment ibid. Copyholder in Reversion after an Estate Tail Witness ibid. Trespassor of the Land no Witness ibid. Tenant at Will may be a Witness to prove Livery 149 Witnesses Sell part of the Land before Tryal 148 Father a Witness for the Son 149 In what Cases Attorney Sollicitor or Council or not to give Evidence against his Client 150 Vide Evidence WILL. Will under which a Title of Land is made must be shewed it self 158 What Evidence may or can be given against the Probate of a Will ibid. Bill of Exceptions on the Probate of a Will ibid. Ejectment by Original Writ 25 27 WRIT Amendment of Original Writs in Ejectment 20 Writ not to proceed Rege inconsult where it lies 12â— FINIS
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
tryed in personal Actions it was totally denied but had it been by direction of Chancery the Court would do it but would in no wise grant this It was said by Ellesmere Lord Chancellor that until the 14. H. 7. it was never known that a Possession was removed by an Action of Ejectione Firme and said It was great pity it was allowed at this day for Law in England and therefore was of Opinion That an Action of Trespass Quare clausum fregit was much better to try the Title than an Ejectione Firme 1. Because no Possession was removed by the one 2. Because a Man may so plead in an Action of Trespass as that he may make the Plaintiff disclose his Title whereas by his Ejectione Firme it is no more than Non culp ' and then a Trial and so out of Possession without more business which he said was a Pick-pocket Action Ex M. S. 3 Leon p. 49. This Action is grounded on two Things videlicet the Lease and the Ejectment It was well observed in Eyres and Banister's Case Meor Rep. 418. That Ejectione Firme in former times was not thought to be an Action which concerned the Lessor but only the proper Interest of the Lessee but now of late times it is put in ure by the Experience of the Judges and all others that an Ejectione Firme is the Suit of the Lessor and the Lease made only to try his Title and to recover the Possession to him and the Suit is prosecuted at his Charge and his Lessee is but his Instrument to this purpose and all this to avoid the Charge and Delay of a Real Action and the Peril of being barred by a single Verdict And Partridge and Strainge's Case Plo. 78. was cited for the purpose if one being out of Possession above a year makes a Lease for years this is Maintenance within the Stat. 32 H. 8. and the Lessor and the Lessee shall lose the Value of the Land but if such a Person be at this day possest of such a Lease to try the Title and not by Contract that the Lessee shall hold the Land this is no Maintenance as hath been resolved in B. C. B. R. and Star-Chamber But for the better understanding the nature of this Action I shall shew wherein it differs from an Action of Trespass and a Quare Ejecit infra Terminum for tho' as was observed before it is in a sort a Trespass yet it differs from it in several Things In Trespass Damages are only to be recovered Diversity where the Damages are only recovered and where the Term. but in Ejectione Firme the Thing or Term it self is to be recovered as well as Damages And from hence another difference is observable in respect of Certainty If in Trespass the Plaintiff declares in one Acre and abutts it and the Jury find him guilty in dimidio Acrae praedict ' or in one Foot of it this is good tho' the Moiety is not bounded they have found the Trespass in the Moiety of the Acre bounded and this sufficeth â—n this Action where Damages are only to be recovered But if it were in Ejectione Firme it had been ill for it is not certain in what part the Plaintiff shall have his Habere fac ' possessionem And from this Diversity it is that if an Ejectione Firme be brought against two Defendants the one confesseth the Action and the other pleads in Bar Not guilty the Plaintiff cannot release his Suit as to one of the Defendants and proceed against the other but in Trespass in such Case he may because this Suit is only in point of Damages Yelv. 114. Winckworth and Man 2 Bulstr 53. Diversity Possession a good Title in Trespass but not in Ejectment and why Possession is a good Title for the Plaintiff in Trespass if the Defendant hath not a better to shew aliter in Ejectment for in Ejectione Firme if the Plaintiff hath not a Title according to his Declaration he cannot recover whether the Defendant hath Title or not as was Cotton's Case An Infant leaseth Land to C. at will who entred and ousted S. who thereupon brought an Ejectione Firme on a special Verdict no Title appeared to be in the Plaintiff and it was objected against the Lease at will because it was made by an Infant and no Rent reserved upon it nor the Lease made upon the Land and therefore the Lessee should be a Disseisor Per Cur ' be the Defendant a Disseisor or not it s not material here for if the Plaintiff hath not Title according to his Declaration he cannot recover and it is not like to Trespass where the very Possession without other Title is good 1 Leon 215. Cotton's Case Naked Colour is not sufficient in Ejectione Diversity colour not sufficient in Ejectione Firme and why Firme as it is in Trespass therefore if the Plaintiff make Title in Ejectment this Title of the Plaintiff ought of necessity to be answered viz. either by matter of Fact or in Law which confesseth and avoideth the Title or traverseth it For a naked Colour in this Action is not sufficient as it is in Assise or Trespass which comprehend not any Title or Conveyance in the Writ or Count as this Action does in both and in Godb. 159. in this Action a Man shall not give Colour because the Plaintiff shall be adjudged in by Title Dyer 366. Godb. 159. Piggot and Goddet's Case Allowance of Conisance of Franchise in Conisance of Trespass includes not Ejectments Trespass will not warrant an Ejectione Firme unless the Franchise had Conusance of all Pleas as was adjudged in the Case of the Bishop of Ely Ter. P. 18 Car. 2. B. R. In Clerks Case the Venire fac ' was ad faciend ' juratam in Placito Transgressionis where it should have been in Placito Transgressionis Ejectionis Firme and the Court would not amend it For though Ejectione Firme be but a Plea of Trespass in its Nature yet the Actions are several and therefore the Venire fac ' ought to be accordingly Cr. El. 622. Clerk's Case In Ejectment against two one pleads to Issue and the other demurs Issue first to be tried Ejectione Firme against two Defendants one pleads Not guilty the other pleads the Plaintiff replies and so Demurrer no Judgment shall be given on the Demurrer till the Issue be tried for in this Action the Possession of the Land is to be recovered and it may be for any thing that appeareth he who pleads the General Issue has Title to it but if it had been an Action of Trespass and the Plaintiff will release his Damages on the Issue joyned he shall have Judgment against the other 2 Leon. 199. Drake and Monday Trespass is deins Stat. 21 Jac. which names Trespass generally but Ejectment is not 1 Keb. 295. Power 's Case The Plaintiff declares in Trespass in one Acre and abutts it the Jury find him guilty in dimidio Acre praed
of the Land by the Defendant this was adjudged a good Entry for the Land in both the Villages per totam Curiam So of Lands in one County Palmer 402. Argoll and Cheney The Corporation of Mercers were seised of the Lands in Question By Corporation in the several Possessions of Two Men and being so seised made a Deed of Lease to the Plaintiff and a Letter of Attorney to deliver the Deed and the Possession The Attorney entred upon the Possession of one of the Men and there delivers the Deed and after enters in the Possession of the other and there doth deliver the Deed the Question was If it were good for the Land for which the second Delivery was because one Deed cannot have two Deliveries but the Court held it shall be intended the first Delivery was good for all and it shall not be intended but that the two Men had Possession only as Tenants at Will to the Corporation and then the Delivery of the Lease in one place is good for all and it shall not be intended they had an Estate for Years or Life except the contrary be shewed Baron and Feme joyn in a Lease by Indenture to B. By Baron and Feme rendring Rent for Years and make a Letter of Attorney to seal and deliver the Lease upon the Land which is done B. brought Ejectment and declares of a Demise made by the Baron and Feme and upon evidence to the Jury it was ruled per Cur ' That the Lease will not maintain the Declaration for a Feme covert cannot make a Letter of Attorney to deliver a Lease of her Land but the Warrant of Attorney is meerly void so that this only is a Lease of the Husband which is not maintained by the Declaration But Hopkins's Case in Cro. Car. 165. is against this where the Plaintiff declared of a Lease made by Baron and Feme On Not guilty it appeared on the Evidence that the Lease was sealed and subscribed by them both and a Letter of Attorney made by them to deliver it upon the Land Per Cur ' it 's a good Letter of Attorney by them both and the Lease well delivered and it is a Lease of them both during the Husband's Life Yelv. Wilson and Rich. 2 Brownl 248. Plomer's Case Cro. Car. 165. Hopkin's Case 2 Leon. 200. CHAP. V. Of the Rule of confessing Lease Entry and Ouster and Rules of Court relating thereunto Of Refusal to confess Lease Entry and Ouster and the Consequence Of how much the Defendant shall confess Lease Entry and Ouster In what Cases there must be an actual Entry and where it is supplied by confessing of Lease Entry and Ouster Rules concerning ones being made Defendant and of altering the Plaintiff and of the Ejectment-Lease HOW necessary the Knowledge of this Practice is to one who would manage his Client's Cause with Discretion and Success is sufficiently apparent and needs no further Recommendation It must be observed as was adjudged in the Mayor of Bristol's Case that there Ejectment in Inferiour Courts or in any other Inferiour Court they cannot make Rules to confess Lease Entry and Ouster as in the Courts of Westminster but they must actually seal the Lease as at Common Law And so it was in Sherman and Cook 's Case where it was moved That the Defendant who by Habeas Corpus had removed an Ejectment out of the Sheriff's Court might consent to a Rule of Court that he should confess Lease Entry and Ouster but the Court refused the Defendant not being bound by the Rule below because they cannot proceed by way of delivering Declarations to the Tenants in Possession but as at Common Law by actual Lease sealed Tryals below how And by Hyde all the Tryals below are tried in the casual Ejector's Name by him that is Tenant in Possession to avoid Charge P. 16 Car. 2. B. R. M. 16 Car. 2. B. R. Where the Freeholds are several Where the Freeholds are several the Plaintiff must sever his Action and one Defendant gives a Note of what is in his Possession the Plaintiff must sever his Action else the Defendant might lose his Costs for which on severance he would have legal Remedy And here is no Inconvenience because the Plaintiff may take Judgment against his own Ejector for the rest and the Defendant shall not confess Lease The Defendant not to confess Lease Entry and Ouster for any more than is in his own Possession Entry and Ouster of all but only of so much as is in his own Possession which is the only way to save his Costs And Medlicot's Case was where the Plaintiff's Title is one by the Demise of A. and the Defendant's several the Plaintiff offered to secure Costs severally to all but he was ordered by the Court to deliver several Declarations that none may defend for more than is in his own Possession else the Plaintiff might clap in an Acre of his own to save Costs and Agreements of Parties are no Guide to Rules but would make the Court but Arbitrary and this Rule is no hindrance of Tryals at Bar where many Defendants have but the same Title Tr. 21 Car. 2. B. R. Medlicot's Case In Ejectment the Ouster was confessed of a third part of a fourth part of a fifth part in five parts to be divided which by Hide is very inconvenient The Inconvenience of the new Course of leaving Declarations and crept in since the new Rule of leaving Declarations the Lands being in several places distinct from each other and may be held by several Titles which could never be had the old Course of actual Ejectment continued but on suggestion that the Title was but one and one Plaintiff and one Defendant it was admitted M. 15 Car. 2. B. R. Cole and Skinner In Ejectment where there are divers Defendants who are to confess Lease Entry and Ouster if one doth not appear at the Tryal the Plaintiff cannot proceed against the rest but must be nonsuited 1 Ventr In Ejectment the Plaintiff shewed Copy of four Acres In what case the Court will give leave to retract the general Confession of Lease Entry and Ouster to save Costs the Title being on Will or no Will but not being able to prove where particularly the Court gave leave to the Defendant that claimed by the Will to retract the general Confession of Lease Entry and Ouster as to this and to have Judgment against the casual Ejector M. 27 Car. B. R. Hide and Preston If the Defendant refuse to confess Lease Entry and Ouster the Rules are thus Where the Defendant was by Rule of Court at the Tryal which was to be at the Bar to appear and confess Lease Of the Defendant's Refusal to confess Lease Entry and Ouster Entry and Ouster and to stand upon the Title only yet at the Tryal he would not appear upon which the Plaintiff was Non-suit and yet Judgment was for the Plaintiff
upon the Rule and he was ordered to pay the Jury And in Davies's Case 13 Car. 2. B. R. H. desired to be made Defendant confessing Lease Entry and Ouster and at the Tryal resolved so to do but the Court denied that he should pay Costs because thereby the Plaintiff hath recovered and so hath the Fruit of his Suit To pay no Costs But in Williams and Hall's Case on Tryal at Bar the Defendants refused to confess Lease Entry and Ouster per quod the Plaintiff was Non-suited and it was moved that in regard the Default was the Defendant's that the Plaintiff might have Attachment against the Defendant according to the Course of the Common Bench which the Court granted So upon a Judgment a-against his own Ejector in default of confessing Lease Entry and Ouster without a special Rule no Costs shall be paid by H. the Tenant in Possession that made this Default because the Plaintiff hath Benefit of his Suit viz. Judgment against the Ejector whereby he may recover Possession Stiles p. 425. 13 Car. 2 B. R. 15 Car. 2. B. R. 1 Keb. 242. The Form of the Rule of Confessing Lease Entry and Ouster in B. sR. B. C. Vide infra Of the Effect of an Entry according to the Rule and where it will supply an actual Ouster and where not Ejectment was brought by Devisee of a Rent Where confessing Lease Entry and Ouster will supply an actual Ouster or not on Condition That if a Legacy be not paid yearly c. that it shall be lawful for the Devisee to enter and after the Demand made of the Rent this Action was brought and the Lease Entry and Ouster was confess'd Per Windham this is only of an Entry sufficient to make the Lease that entitles to the Action not of an Entry that gives Title to the Land and for Non-proving of an actual Entry the Plaintiff was non-suited But otherwise in case of a Lease rendring Rent to be void by Re-entry by Non-payment In the Ejectment there was a Rule for confessing Lease Entry and Ouster and the Question was Whether this be sufficient without Proof of actual Entry Per Hales C. J. the Confession is sufficient else in every Case of Disseisin c. the Entry must be proved but in Assignment of Assignee of Lessee such Confession doth not avoid the Assignment but that must be proved and this is as actual Lease on the Land wich cannot be without Entry And so is 1 Ventr 248. Anonym The Lessor of the Plaintiff had a Title to enter for a Condition broken for Non-payment of Rent Lease Entry and Ouster was confessed and the Court was moved that in regard that the Lessor having such a special Title and no Estate till Entry whether such an Entry shall be supplied by the general Confession or that there should be an actual Entry and it was held it should be supplied by the general Confession But by Hales If A. lets to B. and B. to C. to try the Title the confessing of Lease Entry and Ouster extends only to the Lease made to C. and not to that made to B. P. 26 Car. 2. B. R. Abbot and Sorrel's Case M. 25 Car. 2. B. R. Wither and Gibson 1 Ventr 248. Anonym In Okely and Norton's Case M. 22 Car. 2. B. R. Judgment was prayed for not confessing Lease Entry and actual Ouster by one Coparcener against another Per Cur ' on the former Rule to confess Lease Entry and Ouster generally actual Ouster need not be confessed and Judgment was against the casual Ejector The Rule to confess Lease-entry and Ouster does not extend to confess actual Entry upon a Lease which is the Title The Rule to confess Lease Entry and Ouster does not extend to confess actual Entry upon a Lease which is the Title but the Court said An Entry shall be intended until the contrary be proved of the other side The Case was upon Evidence to a Jury at the Bar. The Plaintiff's Title was a Lease for Five thousand Years which Lease was sealed and delivered at London and the Council for the Defendant would put the Plaintiff to prove an actual Entry by force of this Lease for it was agreed That the Rule to confess Lease Entry and Ouster doth not extend to it but per Cur ' it shall be intended that he entred until the contrary be proved on the other side M. 22 Car. 2. Okely and Norton Sid. p. 223. Langhorn and Merry Upon a Tryal in Ejectment the Title of the Plaintiff's Lessor appeared to be by a Remainder limited to him for life upon divers other Estates and that there was a Fine and Proclamation but he within the Five years after his Title accrewed sent two Persons to deliver Declarations upon the Land as the usual Course was upon Ejectments brought Per Cur ' this is no Entry or Claim to avoid the Fine he having given no express Authority to that purpose and the Confession of Lease Entry and Ouster shall not prejudice him in this respect M. 25 Car. B. R. Clark and Phillips As for ones being made Defendant the Rules are thus He that desireth to be made Defendant in Ejectment for as much as is in his Possession The Defendant to give a Note of what is in his Possession or of his Under-Tenant must give a Note to the Attorney of the Plaintiff in Writing of what the Particulars are of which he is in Possession or his Under-Tenant to prevent Delay at the Assizes T. 15 Car. 2. so ordered By Pinsent in B. C. If one move that the Title of the Land do belong to him and that the Plaintiff hath made an Ejector of his own and therefore prays that giving Security to the Ejector to save him harmless Difference between the Course in the King's Bench and Common Pleas. he may defend the Title the Court will grant it but will not compell the Plaintiff to confess Lease Entry and Ouster except he will be Ejector himself But it is not so in the Court of King's Bench for there in both Cases they will compel him him to confess Lease Entry and Guster Stiles Rep. 368. The Course of the Court is He that is made Defendant in Ejectment not to be charged with Actions by the by That one that cometh in to be made Defendant in Ejectment upon his Prayer confessing Lease Entry and Ouster shall not be charged with any Actions by the by because he comes in without Process or Arrest only to defend the Title In Ejectment after Declaration and before Plea Motions to tâ—r the Plaintiff and why he which had the Title moved the Court for to alter the Plaintiff because he was to give evidence and the Court agreed to it that he should alter the Plaintiff paying Costs and giving Security for new Costs and they may alter the Plaintiff in this Action upon the same Reason that they may alter the Defendant which is usually done 1
to bring Ejectment de unâ Capellâ De Capella but it ought to be by the Name of a Messuage or House 11 Rep. 25. b. Ejectment de septem Messuagiis sive Tenementis De septem Messuagiis sive Tenementis it 's ill after a Verdict for the uncertainty Cro. El. 146. Ejectment de uno Messuagio sive tenemento vocat ' De uno Messuagio sive Tenemento vocat ' the Black Swan is good per Twisden for the last words ascertain it Had the Verdict been general for the Plaintiff for the Messuages and Non Culp ' for the Tenements it had been good And in this case the Plaintiff cannot aid himself by releasing of part as it might be had there been Lands in the Declaration De Messuagio sive Tenemento is ill after a Verdict but if the Judge will allow the Jury to find for the Plaintiff for the Messuage and for the residue for the Defendant it had been good but the Plaintiff may not aid himself by Release Siderf 295. Burbury and Yeoman Ejectione Firme lies not de Coquina De Coquina but it lies by Bill in B. R. tho' Coke said it lies by Writ too and the Law is all one 1 Roll. Rep. 55. It was adjudged in Stiles Rep. 215. That Ejectment doth lie of a Cottage De Cotagio because the Description of a thing by that Name is sufficient and certain enough to shew the Sheriff of what to deliver the Possession but a Recovery lies not of a Cottage Stiles p. 258. Hammond and Ireland Cro. El. 818. Hill and Gibs Ejectione Firme lies de Pomario De Pomario and de Domo for they are certain enough to give Possession tho' a Precipe lies not of it and many things are recovered in Ejectment which are not named in the Register as Hopyard c. Cro. Jac. 654. Royston and Eccleston Palmer 337. mesme Case Cro. El. p. 854. Wright and Wheatly Ejectione Firme de quatuor molendinis De molendinis without expressing whether they are Windmills or Water-mills yet good Mod. Rep. 9. Fitz Gerard's Case In Palmer and Humphrey's Case it was adjudged De pcciaterrae That Ejectment lies de pecia terrae but it was after reversed in the Exchequer-Chamber Cro. El. 422. Palmer and Humphrys And a Declaration de una pecia terrae continen ' ducentas unam Acram sive plus sive minus jacent ' inter terras c. this was adjudged ill after a Verdict and Nil cap ' per Billam entred So continen ' dimidiam acram terrae vocat ' It was said in Hancock and Pryn ' s Case Ejectment of a Close of Land or de pecia terrae containing so many Acres had been good W. Jones p. 400. Savil 176. Hardr. 57. Ejectione Firme cannot be of a Manor De Manerio for that there cannot be an Ejectment of the Services but if they express further a Quantity of Acres it is sufficient and it lies of a Manor or the Moiety of a Manor if the Attornment of Tenants can be proved and there is none that brings Ejectment of a Manor 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 Vide infra Hetley 80. Norris and Isham And p. 146. Warden's Case It was doubted by Rolls and the Court De Crofto if an Ejectment lies de Crofto therefore the Plaintiff moved for a special Judgment for the rest of the Land contained in the Declaration and released the Damages as to the Croft and had it but afterwards in Meeres and French's Case it was agreed That Ejectione Firme lies of a Croft and Dower and Assise will lie of a Croft because it is put in View of the Recognitors tho' a Formedon nor Praecipe will lie of it but 2 Car. p. Rot. 301. Holmes and Wingreve de Crofto is ill in Ejectment tho' good in Assise Rolls Rep. p. 30. Ejectment de uno Clauso De uno Clauso without saying how many Acres is ill A Man makes a Lease of a Garden containing Three Roods of Land De tribus Roods of Land Lessee is ousted and brings Ejectment the Justices differed in Opinion whether it were good or not but all agreed the best order of Pleading to be to declare That he was ejected of a Garden containing Three Roods of Land Godb. p. 6. Parcella terrae does not comprehend a Garden in Ejectione Firme Parcella tarrae Moor 702. Palm 45. Ejectment de uno Clauso continen ' tres Acras per estimationem ill but Indictment quare vi armis in Clausum continen ' tres Acras per Estimationem fregit is good Debt or Demise of Seven Acres per estimat ' is ill Dormer's Case Brownl p. 142. Tho' in Co. 11 Rep. 55. Savill's Case That an Ejectione Firme lies not of a Close yet the contrary had been since adjudged between Hykes and Sparrow Tr. 15 Jac. Rot. 774. Cr. Car. 555. Siderf 229. Declarat ' is Quod cum dimisit to him unum Messuagium unum Clausum vocat ' Dovecoat-Close continen ' tres Acras eidem mâ—ssuagio spectan ' per Cur ' it does not lie of a Cloâ—e tho' coupled with other Words because the Quality of the Soil is not alledged as to say Land Meadow Marsh c. And by Coke if he had bound the Land without shewing the Quality it had not been good tho' it was objected that by all the Words put together here is sufficient certainty to put the Party in Possession and yet some Reports are to the contrary Ejectione Firme of a Close called White-Close was said to be held good in Ellis and Floyd's Case cited in Madonell's Case But in Ireland Ejectment was of a Close called the Upper Kibwell and of another called the Lower Kibwell containing Three Acres of Land was held good Regula And it is a sure Rule That the certainty of the Land ought to be described and the Quality c. And therefore the Case of Jones and Hoell seems not to be Law which was Ejectione Firme of Seven Closes one called Green Mead and so gave to the others several Names and the Verdict was for the Plaintiff and by the Court there it 's well enough For said they when a Name is given to every Close tho' the Contents of Acres are not mentioned viz. so many of Land so many of Pasture i'ts sufficient and aided by the Statute of Jeofayls 11 Rep. 55. Savill's Case 1 Roll. Rep. 55. mesme Case Cro. Jac. 435. Wilks and Sparrow 2 Roll. Rep. 1. 608 189. Macdonel's Case Cro. El. 235. Jones and Hoell In Martin and Nichol's Case Error was assigned It 's not distinguished how much of Pasture and how much of Meadow ergo ill because the Declaration was of a Messuage and Forty Acres of Land Meadow and Pasture thereunto appertaining and it was not distinguished how
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
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
Traverse is good and the Bar is naught The Defendant in his Bar ought to have made his Distinction and every Plea which goes to the Jurisdiction of the Court ought to be taken most strong against him that pleads it and the Traverse here ought to be to the Town and not to the ubi which was idle for the Law said as much and we do not imagine any Fractions of Towns Winch. p. 113. Austin and Beadle Cro. Jac. 692. mesme Case Hutton p. 74. mesme Case Note He who would demand Conisance of this Plea ought to shew his Warrant of Attorney in Latin Sid. 103. in the Bishop of Ely's Case The Attorney General in Hales and Jull's Case prayed Allowance of the Plea Cinque-Ports that the Lands in the Ejectment were within the Cinque-Ports which the Court granted there being no Imparlance General or Special both which affirm the Jurisdiction of the Court and at the Venire fac ' the Plaintiff may suggest the Lands to be within the Cinque-Ports and have it of Places adjacent within the County 1 Keb. 65 Sir Edward Turner in Ejectment 〈◊〉 Conisance not allowable on Suggestion but it must be averred on Record ore tenus shewing his Warrant of Attorney demanded Conisance for the Bishop of Ely per Cur ' it's not allowable on Suggestion which is Cinque-Ports Ancient Demesne c. It must be averred on Record for tho' the Court takes notice that Ely is a Royal Franchise yet this must be so averred or pleaded and may be after Imparlance It must be averred or pleaded and may be after Imparlance in Ejectment when any third Person is concerned since the new way of Ejectment used in Green and Simpson's Case but Siderfin is contra that it cannot be pleaded after Imparlance 1 Keb. 946. 948. Sid. 103. The Defendant prayed to be admitted to plead in Abatement Where Conisance of Plea not allowed of in Ejectment that the Lands in the Ejectment are within the Cinque-Ports and the rather for that he was made Defendant by the Rule of Court with a special Imparparlance with a salvis omnibus c. Per Cur ' let him plead in Chief unless in Ancient Demesne no special Plea has been allowed because the Lord would be prejudiced in a Trial at Common Law 1 Keb. 725. Hale and Uppington In Hall and Hugh's Case in Ejectment of Lands Part within and part without the Cinque-Ports and demur part within and part without the five Ports the Defendant after Imparlance pleads in Abatement That part of the Lands are in the Five Ports and so prays Judgment si Curia cognoscere velit c. The Plaintiff demurs because it does not appear but that the Demise was out and it 's transitory and may be laid any where tho' the Lease was actually sealed in another Place or County and the Defendant may plead Non dimisit Where Non dimisit pleadeded in Ejectment as well as Not guilty The Demise in this Case was laid at Maidstone per Twisden this being an inferiour Court they cannot try the Demise which is issuable Why the new Rule of confessing Lease was introduced and the great Mischief that came in want of Proof of the Demise was the cause of introducing the new Rule In this Plea it was said That the Lands were in F. parcel of the Cinque-Ports where time out of mind the Writ of our Lord the King runs not and that they of F. have always tried c. this is ill Prescription must be to the five Ports and not to F. only for the Prescription should have been annexed to the Five Ports generally and not to F. only and the Court ordered him to plead in Chief and to confess Lease Entry and Ouster or else that the Plaintiff take Judgment against his own Ejector 2 Keb. 69 79. 1. Whether Ancient Demesne pleaded be a good Plea 2. Whether it may be pleaded after Imparlance In Cro. Car. 9. it was a Question Whether Ancient Demesne may be pleaded after Imparlance Ancient Demesne a good Plea in Ejectment and why It 's resolved That Ancient Demesne is a good Plea in Ejectione Firme and in Replevin tho' it was doubted in our Books formerly but that is fully setled in several Reports In Alden's Case 5 Rep. the Defendant pleads That the Tenements in which c. were parcel of the Manor of O. in Com. S. Quod quidem manerium est de antiquo Dominico c. and demands Judgment si Curia hic vult cognoscere c. The Plaintiff demurs and per Cur ' it is a good Plea 1. Because it 's the common Intendment that the Right and Title of the Land will come in Debate in this Action 2. In this Action the Plaintiff shall recover the Possession of the Land and have Execution by habere fac ' possessionem and this Action savours of the Realty So in Pymmock and Feilder's Case where the Pleading was nice the Defendant pleads that the Lands were Ancient Demesne and pleadable by a Writ of Right Close c. The Plaintiff shews that they were Copyhold Lands Parcel of the Manor and entitles himself by Lease under the Copyholder and traverseth That they were impleadable by a Writ of Right Close and it was thereupon demurred 1. Because Copyhold-Land parcel of a Manor of Ancient Demesne should be pleadable there and not at Common Law 2. Because this Traverse that they were impleadable is but the Consequence of Ancient Demesne Per Cur ' the Copyhold-Lands are as the Demesnes of the Manor and are the Lord 's Freehold and therefore not impleadable but in the Lord's Court and the Traverse is well enough taken 1 Bulstr 108. Cr. El. 826. 5 Rep. 105. Alden's Case Stiles 90. Cro. Jac. 559. Pymmock and Feilder Now a Lease for years is intended to be taken real in a Recovery and because a Lease for years intended to be recovered in Ejectione Firme it is a good Plea to say it is Ancient Demesne yet a Lease for years is but personal in Quality 2 Rolls Rep. 181. Banister and Eyres The Defendant imparles in Ejectione Firme Whether Ancient Demesne is pleadable after Impalance and after pleads that the Land is Ancient Demesne c. unde intendit quod Curia non vuit cognoscere c. The Plaintiff demurs Per Cur ' this Plea is pleadable after Imparlance because if Judgment be given here the Lord will reverâ—e it by Disceit and the Judgment will be avoidable and the diversity is true Regula A Man may plead that which is in Bar after an Imparlance but not that which goes to the Writ and this holds in all Cases but Ancient Demesne 2. The last Conclusion is Surplusage Conclusion of Plea but if he had begun his his Plea Actio non it had been ill notwithstanding the Conclusion ut supra But the Defendant waved his Demurrer without Costs and pleaded to Issue if Frank-fee
or not And yet Hetley saith p. 117. It was agreed by all that Ancient Demesne is a good Plea in Ejectment but not after Imparlance Marsham and Allen's Cas Dyer 210. in margine But now if a Man come in and pray to be made Defendant and to plead specially Ancient Demesne he shall do it and it 's now used of Course to plead Dilatories after Imparlance New Defendant not to plead Ancient Demesne after the former Imparlance 1 Keb. 361. Holiday's Case But in 1 Keb. 706. by Windham the new Defendant one that prays to be made so may plead Ancient Demesne after the former Imparlance because it 's not any Ouster of the Court of Jurisdiction Cur ' e contra He ought to plead Not guilty personally Roch and Plumpton's Case And in 1 Keb. 755. Plea of Ancient Demesne allowed the same Term Snow and Cooley The Court will allow Plea of Ancient Demesne the same Term contrary to the ordinary Rules in Ejectment And in Sutton and Courtney's Case it was prayed by Council That the Defendant might have Liberty to plead Ancient Demesne to a Declaration delivered before the Essoyn of this Term And how as of last Term which the Court granted and ordered him to attend the Scondary to settle the said Plea which is usually done by making the Plaintiff deliver a new Declaration as of this Term and so the Plea cometh quasi before Imparlance 2 Keb. 725. In David and Lyster's Case Rolls said Ancient Demesne is a good Plea after Imparlance for it goes in Bar of the Action it self and not in Abatement of the Writ Stiles 90. Plea puis darrein Continuance Ejectione Firme was brought for entring into three several Vills Release puis darrein Continuance before the Justices of Nisi prius they can not take it The Declaration makes mention of no Vill in certain The Defendant pleads a Release puis darrein Continuance before the Justices of Nisi prius Per Cur ' a Man cannot plead a Release at the Nisi prius after Issue joyned for so none should have Judgment When this Plea is pleaded the Justices of Nisi prius cannot proceed to take the Inquest and to this Plea of the Defendant the Plaintiff cannot there reply but he ought to reply in Bank After Issue joyned and a Venire fac ' awarded in such a Vill the Sheriff returns null tiâ—l Vill this is not good for he cannot return that thing which is contrary to the Issue to avoid the Trial à fortior ' one of the Parties cannot plead such matter at the Nisi prius the Authority of the Justices of the Nisi prius is to take the Verdict of the Jury and no other Plea And the Justices of the Nisi prius have no power to amend any Fault in the Declaration and when the Sessions end their Authority ceaseth Vid. Cro. Jac. 261. contra 10 H. 7. 21. 1 Bustr 92. Moor and Brown Yelv. p. 180. 1 Cro. Jac. 261. In Ejectione Firme against two one appears and pleads the General Issue and Process continues against the other who now appears and pleads Entry puis darrein Continuance in Abatement of the Writ Upon which the Plaintiff demurs and after Issue was found for the Plaintiff Demurrer a Confession of the Entry he shall not have Judgment for the Demurrer is a Confession of the Entry and shall abate his own Writ for in this Action the Term is to be recovered aliter if he had imparled Vide supra Plea in Abatement Dyer 226. Upon a Special Verdict in Ejectment Release pleaded at the day of the Argument and a day given for Argument before which the Defendant procures a Release of all Ejectments and at the day for the Argument pleaded the Release puis darrein Continuance and good aliter of a Release between the Nisi prius and Day in Bank because there he had no day in Court nor has he any Remedy but by Audita Querela if the Plaintiff sued Execution 2 Rolls Abr. 467. Wykes and Bunbury Cr. Jac. 646. Stamp and Parker Ejectment was brought of Lands in K. and two other Villages Entry puis dar ' Cont ' pleaded at the Nisi prius the Plea is receiveable The Defendant pleads Not guilty and at the Nisi prius pleaded That the Plaintiff puis le darrein Continuance entred into a Close parcel ' praemissorum and him expelled and a Demurrer upon it because he declared not in which of the Villages the Close lay Per Cur ' this Plea is receivable for it is matter in fait and peremptory to him who pleads it for as a Release or matter in Bar may be pleaded so may this and is receivable at the Discretion of the Justices if they perceive any Verity therein So is Rolls Abr. 630. Moor and Hawkins Cr. Jac. 261. Yelv. 180. Moor and Hawkins 1 Brownl 145. In Ejectione Firme the Defendant may plead at the Assises before the Justices of Nisi prius That the Plaintiff had entred into parcel of the Land mentioned in the Declaration puis darrein Continuance the Justices of Nisi prius may accept the Plea and dismiss the Jury and tho' they do not give any day to the Parties in Banco yet this is not any Discontinuance altho' that the Plea be collateral for the day of Nisi prius and day in Bank are one day For the Court in Bank gives day to the Jurors in Bank Nisi prius Justiciarii ad Assissas venerint and to the Parties day is given there absolutely 2 Rolls Abr. 630. Moor and Hawkins 1 Rolls Abr. 485. Sir Hugh Brown's Case In Ejectione Firme By this Plea the first Issue of Not guilty is discharged after pleading Not guilty a Release is pleaded puis darrein Continuance whereby the first Issue is discharged which the Court granted And tho' the Justices cannot try it at Nisi prius unless they think it but Colour and insufficient yet if he think it sufficient he must sign a Bill of Exceptions for the Trial is Error and so Yelv. Bill of Exception 181. And in this Case the Release of the Lessor of the Plaintiff is but Colour Also the Party cannot demur to such Plea also the Agreement to try and stand to the Title only is no Cause to over-rule such Plea and per Cur ' the Plea certified hither was allowed notwithstanding such Agreement being gained after 3 Keb. 67. Mich. 24. Car. 2. Carter and Haggard Accord and Satisfaction a good Plea in Ejectment H. P. brought Ejectione Firme against R. C. and A. his Wife and A. D. for an House in G. in c. upon Demise made by A. H. the 7th of April 8 Jac. for five years and that the Defendant the 10 of April in the same year ejected him c. The Defendant pleads That after the Trespass and Ejectment viz. primo Maij Anno octavo supradicto apud G. praedict ' talis inter R. C. praefat ' H. P. tam
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
Array was challenged Challenge of the Array to the Lessor because it was made at the Nomination of the Plaintiff and by Consent of the Parties two of the Attorneys of the Court did try the Array The Trial of the Array is good either by the Coroners or by two Attornies Godbolt 428. Williams and Lloyd 2 Rolls Rep. 363 and 131. In Ejectione Firme on Non culp ' pleaded it is not any Challenge to the Array that the Sheriff is Cousin to the Lessor of the Plaintiff for it does not appear that the Title of him in Reversion shall be in question for peradventure the Lease is not well made or no Ejectment committed and he in Reversion is not any Party to the Action So in the said Case it shall not be any Challenge altho' it appear to the Court by Averment that this Lease was made only in Trust and to try the Title of the Plaintiff for the Cause aforesaid Note But now in our seigned Ejectments it is otherwise because the Title of the Lessor is only in Question 2 Rolls Abr. p. 653. Sir Edward Kempston and Banister Cradock Id. ibid. Ejectment for Lands in Sussex tried at the Bar the Defendant challenged the Polls for Default of Hundredors but did not shew it for Cause till the Pannel was perused Per Hale Chief Baron Challenge for Default of Hundâ—edors on Trial at Bar. It is against the common Course to take a Challenge for want of Hundredors when the Trial is at the Bar upon a Jury returned at the Denomination of an Officer of the Court where there are but four and twenty left by the Parties themselves But if this Challenge be taken to the Polls it must be taken presently and the special Cause assigned viz. want of Freehold there Hardr. p. 228. Attorney-General and Pickering in Scaccario In Ejectione Firme upon a Lease made in G. of Land in T. In G. praedict ' the Venue shall not be from G. but from T. for it shall be intended that T. is a Vill of G. 2 Rolls Abr. 620. Beachamp and Sampson The Lease is made apud Curdworth of Lands lying in parochia de Curdworth praedict ' the Issue was de Vicineto de parochia de Curdworth The Venire is well awarded praedict is such an Averment as that of necessity it must be taken that Curdworth the Town and Curdworth the Parish are all one and if so be the Venire fac ' is of the one or of the other it must be good But if the Parish be a larger Continent than the Town aliter because it cannot be intended that more Towns were in the Parish unless it were shewed on the other side and we are to judge by the Record which proves the Town and the Parish to be all one So in 43 and 44 Eliz. in Ejectment the Lease whereupon the Trial was had was made apud Abingdon of Lands lying in Burgo de Abingdon praedict The Venire was de Vicineto de Burgo de Abingdon praedict This is a good Venire for praedict makes this by Intendment of Law to be all one 2 Bustr 209. Vale and Field 2 Rolls Rep. 21. mesme Case Cro. Jac. 340. mesme Case In an Ejectione Firme The Issue of Not guilty refers to the Ejectment where the Land lies if the Plaintiff declare of a Lease made apud Ickworth of Land in Berry in Suffolk and Not guilty pleaded the Venire fac ' shall be from Berry and not from Ickworth for the Issue of Not guilty refers to the Ejectment which was where the Land lies 2 Rolls Abr. 619. Pell and Spurgeon The Award upon the Plea-Roll was against both Defendants Ven ' fac ' amended they both plead Non culp ' The first Process viz the Habeas corpora was against both but the Venire fac ' against one of them only one of them being named in the Trial and Verdict for the Plaintiff against both Defendants Per Cur ' the Venire fac ' was amended after Error brought because vitium Clerici 3 Bulstr 311. Cranfeild and Turner Ejectione Firme of Lands in D. and the Visne was from the Parish of D. The Vill and the Parish intended all one and Verdict pro Quer ' It was objected as Error for the Venue ought to be from D. and not from the Parish of D. for it may be the Parish extended into several Vills But per Cur ' it is well awarded for prima facie they shall be intended all one if it does not appear to the contrary by pleading and it shall not be intended to extend into several Vills Jones Rep. 205. Gilbert and Parker Moor 797 798 837. The Venire fac ' was de Vicineto parochiae de Bredon which was ill for the Lease and Ejectment are alledged to be at Bredon which shall be intended to be a Vill and the Lands are intended to be at Workington which also shall be taken to be a Vill in the Parish of Bredon so that it appears to the Court that there is a Town called Bredon a Parish called Bredon and Workington a Vill in the Parish of Bredon and the Tythes are alledged to be in Workington and Willesdon which also shall be intended a Vill in parochia de Bredon so that the Venue ought not to have been out of the Parish of Bredon Workington and Willesdon And though Workington and Willesdon are named Hamlets in the Pernâ—men yet the Court ought to adjudge upon that which is alledged by the Plaintiff in his Count 11 Rep. 25. 6. Harpur's Case Ejectione Firme versus B. for ejecting him of certain Lands in Creeting St. Marys Creeting St. Olaves and in Creeting omnium Sanctorum and the Venire fac ' was de Vicineto de Creeting St. Mary Creeting St. Olives and Creeting Omnium omitting Sanctorum the Court blamed the Clerk for his Negligence Winch. 34. Good and Bawtry In the Venire fac ' one of the Pannel was named Thomas Barker of D. and in the Distringas Jurat ' he was left out and Thomas Carter de D. put in his place and at the Nisi prius Thomas Carter was sworn and with others tried the Issue Per Cur ' there is difference between a Mistake in the Name of Baptism and in the Sirname Difference in Law between a Sirname and a Name of Baptism for a Man can have but one Name of Baptism but may have two Sirnames as George for Gregory and being sworn at the Nisi prius it 's a void Verdict Cro. El. p. 57. Displyn and Spratt Ejectione Firme of a Lease apud Denham in Lands of the Parish de Denham praedict ' the Venire was de Vicineto de Denham it 's good enough The Parish and Village are intended to extend and to be all one Cro. El. 538. Bedel and Stanborough The Venire fac ' was ad faciend ' Jurat ' in placito transgressionis whereas it should have been in placito Transgressionis Ejectionis
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
to prove the Livery and Seisin One who had Estate at Will to prove a Livery afterwards one of those Witnesses had an Estate at Will made unto him of part of this Land and because being produced as a Witness to prove the Execution of the Deed was excepted against because he was a party now interested in the Land and so his Oath was to make his own Estate good But per Cur ' he may well be Sworn a Witness to prove the Livery and Seisin this being in affirmance of the Feoffment 1 Bul. 203. The Father testified a Deed in Persuance and Affirmance of a Lease Father a Witness for the Son made to his Son by himself which the Court allowed his Interest being past away 1 Keb. 280. Jay and Ryder In Ejectment on Extent on Mortgage on Trial at Bar. The Defendant excepted to the Plaintiffs Witness because his Father paid a Debt as Security with the Defendants elder Brother for the Defendants Father but there being no Counterbond and therefore doubtful in Equity whethere he as Heir could recover any thing against the Defendant as Heir the Court Swore him but if he were to let himself into a certain Interest thô but in Equity the Court will set him aside 2 Rol. 345. Vincent and Tirrinsharp In Ejectment one Baker who had been Sollicitor for P. the Defendant was produced as a Witness concerning the Rasure of a Clause in a Will supposed to be done by P. The Question was In what Case Sollicitor c. not to give Evidence against his Clyent if he ought to be examined about this because having been Sollicitor he was obliged to keep his Secrets but it appearing that B. had made this Discovery to him about which he was now to give his Evidence before such time as he had retained him Per Car. He was Sworn aliter if he had been retained his Sollicitor before The same of an Attorney or Councellor 1 Vent 179. Cutts and Pickering What shall be good Evidence in this Action and what not There are several Cases in our Books concerning Evidence upon Leases made to try the Title which I shall not at present meddle with they being of no great use since the alteration of Practice in this Action but I shall mention those which are of Dayly use and principally aim at such Evidence which is allowed or disallowed as to the proving of Title to Land without the knowledge of which there are infinite Failures and Non-suits in this Action and I shall first begin with Matters of Record and then Matters of Fait Bills Answers Depositions and other Sorts of Evidences as to Antiquities Pedigrees and what Evidence a Man must have to make Title in several Cases And Lastly Treat of Demurrers upon Evidence and Exemplifications of Verdicts As to Matters of Record If a Deed be Pleaded the Party must shew it in Court Record shewed it Court so if a Record be Pleaded it must be sub pede sigilli but Evidence it s not absolutely necessary to shew either if it can otherwise be proved to a Jury as in 1 Vent 257. In Evidence for Lands in Ejectment in Ancient Demesne the Court admitted of Evidence to prove a Record to cut off the Intail which was lost and it may be proved to a Jury by Testimony as the Decree in Henry the Eighth's time for Tithes in London is lost yet it hath been often allowed there was one And further in this Case it appeared That part of the Land was Leased for Life and the Recovery with a single Voucher was suffered by him in Reversion Long Possession and so no Tenant to the Praecipe yet in regard the Possession had followed it a long time the Court would prefume a Surrender The Copy of a Record may be shewed and given in Evidence to a Jury Copy of a Record for Records are of so high a nature and have such great credit in the Law that they cannot be proved by any other means than by themselves and no Rasure or Interlineation shall be intended in them and therefore a Copy of a Record being testified to be true is permitted to be given in Evidence but the sure way is either to exemplifie it under the great Seal or at least under the Seal of the Court 10 Rep. Leyfeild's Case In Ejectment for Lands in Brecknockshire Upon Not guilty and Tryal there The Defendant gave in Evidence a Recovery in a Writ of Quod ei deforceat which is their Writ of Right at the great Sessions there and Issue being tendered therein the Defendant produced an Exemplification of the Record under the Seal of the great Sessions but not the Record it self The Plaintiff Demurs to the Evidence and the Question was whether the Exemplification maintained the Issue or not It was agreed That a Sworn Copy of a Record in Wales might be given in Evidence Exemplificacation but not an Exemplification because the Court here ought not to take notice of such an inferior Seal but if it were Exemplified under the great Seal it would be Evidence and Proof tho the Record it self were lost And yet Whitehead's Case was That an Exemplification under the Seal of the Mayor of Bristol of a Recovery suffered there under the Town Seal should be given in Evidence tho the Record it self could not be found Note It must be given in Evidence in the like manner as it is to be pleaded and that is under the great Seal Hardress 118 119 120. Henry Olive versus George Gowin And by Hales Exemplification of a Recovery in the Marquess of Winchester's Court in ancient Demesne was allowed because it was ancient One had gotten a presentation to the Parsonage of G. in Lincolnshire and brought a Quare Impedit and the Defendant Pleaded an Appropriation and there was no Licence of Appropriation produced but because it was ancient the Court will intend it and in an ancient Recovery they would not put one to prove Seâ—sin of a Tenant in a Praecipe Mod. Rep. The Scyrograph of a Fine may be given in Evidence Scyrograph of a Fine but not delivered to the Jury 2 Sid. 145 146. in a general Issue in Assize Plowd Com. 411. Note Fine and Non-claim If a Fine be given in Evidence with five years Non-claim the Fine must be shewed with Proclamations under Seal and the Scyrograph will not serve A Fine or Recovery Fine Recovery may be found by the Jury without shewing it under Seal but they cannot find against what is admitted by the Record Sid. 271. The Copy of a Recovery was suffered to be given in Evidence Copy of a Recovery the Recovery it self being burnt Mod. Rep. 117. Green and Proud The Court allowed an old Recovery No Tenant to the Praecipe proved thô no Tenant to the Praecipe could be proved but it shall be intended Cro. Jac. 455. Mod. Rep. 117. Nothing may be delivered in Evidence to a
Jury but that which is of Record or under Seal but by consent 2 Sid. 145. As to Letters Patents vide infra Deeds Dyer 167. The Jury find the Constat of Letters Patents One may not shew in Evidence to a Jury an Inspeximus of a Deed inrolled in Chancery Inspeximus if it be not a Deed of Bargain and Sale inrolled there for if it be a Deed of Feoffment the Party must shew the Deed it self for the Inspeximus is no matter of Record Inspeximus Stiles Rep. 445. But by Rolls tho' the Inspeximus be the Inspeximus of the Inrolment and not of the Deed it self yet if it be an Ancient Deed it may be given in Evidence The Earl of being a Popish Recusant convict Conviction of a Recusant the Record being burnt proved in Evidence presented the Lessor of the Plaintiff to a Rectory who was instituted and inducted but the Record of the Conviction was burnt as was supposed in the Fire at the Inner-Temple The Defendant offered to prove it by the Estreats thereof in the Exchequer and by the Inquisition found and returned here of Recusant's Lands Per Hale tot ' Cur ' in such a Case as this a Record may be proved by Evidence because the Conversion here is not the direct matter in Issue as was Sir Paul Pinder's Case in an Action of Trover and Conversion for Goods the Proof depended upon a Fieri facias and a Venditioni exponat and yet in that Case because the Fieri facias could not be found upon Record Fieri fac ' proved in Evidence it was admitted to be proved in Evidence Hardr. 323. Knight and Dawler But when he that sues an Elegit brings an Ejectment to try the Title Elegit must be shewed he must in Evidence shew the Elegit filed A Transcript of a Record or Inrolment of a Deed Transcript of a Record or Inrolment of a Deed. may be given in Evidence for they are things to be credited being made by Officers of Trust but Inrolmene of a Deed which needs no Inrolment is no Evidence In Ejectment of Lands in the Parish of Long Hope the Defendant pleads that they are part and held of the Manor of Long Hope which is ancient Demesne and on Issue thereupon Doomsday-book was brought in Doomsday-Book by which it appeared That the Manor of Hope is the Land of W. de B. who held of the King which Per Curiam doth not maintain the Issue unless the Defendant had pleaded further that the Lands are as well known by the Name of Hope as Long Hope this Book is the Tryal and the Court cannot take notice of the same Respondeas Ouster 1 Keb. 520. Holdy and Hodges Matters of Fait As for Deeds shewed forth and given in Evidence the Learning thereof is excellently delivered in Dr. Leyfeild's Case 10 Rep. It is a Maxim in Law That he which is Party or Privy in Estate or Interest and he that justifies under him shall shew the Original Deed to the Court for this Reason because to every Deed two Things are requisite 1. That it be sufficient in Law and this is called the Legal Part and the Judgment of this belongs to the Judges The other concerns Matters of Fact viz. if it were sealed and delivered and this is tried per Pais or whether it be rased or interlined or upon Limitation Condition Revocation and the like Therefore it hath been always thought dangerous to permit any upon the General Issue to give in Evidence that there is such a Deed which they have heard or read or to prove it by a Copy Deed proved by Copy or Testimony But in Cases of Extremity as where Deeds are burnt by Fire upon the General Issue the Judges will suffer to prove a Deed to a Jury by Testimony And what hath been said as to the Legal Part of a Deed holds as to Letters Patents A Deed cancelled by Practice Deed cancelled was allowed to be read in Evidence in Action under that Deed the Practice being proved Hetley 138. Lease and Release were given in Evidence to intitle the Plaintiff and they were both named haec Indentura and were not indented yet good by Hales Norf Assises 1668. Bryant's Case In Negus and Reynell's Case in Evidence to a Jury it was held 1. That a Proof that there was a Revocation is sufficient for the Heir without producing the Deed it self Lease and Release 2. A Lease recited in the Release was admitted to be proved by Witnesses to the Release without shewing the Lease it self which was imbezelled by the Lessor of the Plaintiff P. 13 Car. 2. B. R. And the Copies of Deeds have been admitted in Evidence the Original agreed to be burnt So in Ejectment at the Bar a Copy of a Deed burnt made by the Witness to carry about to Council was allowed for Evidence so was Doâ—se's Case at Oxon. and Thyn's Case The Testimony of a Witness of the Contents of a Deed burnt but such Witness was refused at Lent Assises by Windham tho' the Deed were in the Adversaries own Custody Mod. Rep. p. 4. M. 21 Car. 2. B. R. It is said That a Copy of a Deed is good Evidence where the Defendant hath the Deed and will not produce it Mod. Rep. 2 Keb. 483. 15 Car. 2. Stroud and Hill One claimed under a Lease for years of a Prebend c. and after he claims under a Lease from a Nominal Prebendary thereof founded in the Cathedral Church of Lincoln and he offered at a Tryal at Bar in Ejectment to read a Copy of a Lease out of the Leiger-Book of the Dean and Chapter of Lincoln Copy out of a Leiger-Book no Evidence but it was disallowed per Curiam for the Book it self is but a Copy and a Copy of a Copy is no Evidence P. 27 Car. 2. B. R. Cotterel's Case Leiger-Books and Paper-Books cannot be exemplified but when offered in Evidence must be produced themselves Hardr. 117 118. The Recital of a Lease without shewing it Recital of the Lease ruled to be no Evidence upon a Demurrer Ra. Entr. 318. 1 2 P. M. Rot. 13. B. R. cited Hardr. 119 120. A Copy of the Counterpart of a Lease Counterpart of a Lease the Lease being Lost allowed to be Evidence Tho' the Seals be broken off a Lease Seals broken off yet the Deed may be given in Evidence 1 Mod. Rep. fol. 11. Q. if the Deed be pleadable A Copy of a Court-Roll may be given in Evidence Copy of Court-Roll where the Rolls are lost or not lost 15 Car. 2. B. R. Snow and Cutler For if a Deed be pleaded Difference between pleading a Deed and giving it in Evidence the Party must shew it in Court but if it be given in Evidence it is not necessary to shew it if it can otherwise be proved to a Jury for Witnesses may prove the Contents of a Deed
per Cur. the Verdict may be taken according to the Title and so it was Qu. how the habere fac ' Possession in such case shall be executed Sid. p. 229. Ablett and Skinner The Plaintiff Declares of a Lease made the 14 of January Variance as to time 30 El. Hab. from the Feast of Christmass then last past for three years and upon the Evidence the Plaintiff shewed a Lease bearing date the 13 of January eodem ann And it was found by Witnesses that the Lease was Sealed and Delivered upon the Land the 13th day Per Cur. Notwithstanding this variance the Evidence is good enough to maintain this Declaration for if a Lease was Sealed and Delivered the 13 day it was then a Lease of the 14 4 Leon. p. 14. Force and Foster The Plaintiff declared in Ejectment of 100 Acres of Land Evidence of fewer Acres then delcared and shewed his Lease in Evidence of 40 Acres And it was urged That he failed of his Lease for there was no such Lease as that whereof he did Count. But per Cur. it is good for so much as was contained in his Lease and for the Residue the Jury may find the Defendant Not guilty Cr. Eliz. p. 13. Guy and Rand and yet it is held 2 Rolls Abr. 72. Brown and Ells. If the Plaintiff Declare in Ejectment upon a Lease for years of three Acres and in Evidence he shews but a Lease of a Moiety this is a material variance for it is not the same Lease Ejectment of Meadow and Pasture and the Evidence is de Herbegio and Pannagio Ejectione Firme of so many Acres of Meadow and so many Acres of Pasture Upon Not guilty the Jury find a Demise de Herbagio and Pannagio of so many Acres the Question was in Wheeler and Toulson's Case Hard. 330. If this Evidence shall maintain the Issue The Court inclined it did not Ejectment doth lie of a Lease of Herbage and then by the same Reason the Plaintiff ought to Declare accordingly and Herbage doth not include all the profit of the Soil but part of it The Declaration was of a Joynt Lease made by two Joynt Lease by Tenants in Common and on Evidence it appears they were Tenants in Common By three Justices against one it is good Cr. Jac. 166. Mantle's Case 83. Ejectment was of Lands in Oxenhope and the Witnesses upon examination did swear there were two Oxenhopes upper and nither without Addition and upon this the Plaintiff Nonsuited at York Assizes If a Man Declare of a Lease made by Baron and Feme and gives in Evidence a Lease made by the Baron only this is a material variance Note The day of the Filing of the Declaration in the Ejectment may be given in Evidence where the Demise is laid the same Term Vid. Siderf p. 432. Perdyer's Case Of Demurrer to the Evidence It was held by all the Court upon Evidence to a Jury Demurrer on Evidence That if the Plaintiff in Ejectione Firme or other Action gives in Evidence any matter in Writing or Record or a Sentence in the Spiritual Court as it was in this Case and the Defendant offers to Demur there upon The Plaintiff ought to joyn in Demurrer or wave the Evidence because the Defendant shall not be compelled to put a matter of difficulty to the Lay-gents and because there cannot be any variance of a matter in Writing but if either Party offer to Demur upon any Evidence given by Witness the other unless he pleaseth shall not be compelled to joyn because the Credit of the Testimony is to be examined by a Jury and the Evidence is uncertain and may be enforced more or less but both Parties may agree to joyn in Demurrer upon such Evidence and if the Plaintiff produce Testimonies to prove any matter in fact upon which a Question ariseth if the Defendant admit their Testimones to be true he may Demur but in the Case of the King the other Party may not Demur upon Evidence shewn in Writing or Record for the King unless the King's Council will thereunto assent In the King's Case But the Court in such Case shall charge the Jury to find such special matter but this is by Prerogative who may waive the Demurrer or take Issue at his Pleasure Cro. Eliz. 751. Midlet and Baker 5 Rept 104. Baker's Case And in 1 Inst. p. 72. If the Plaintiff in Evidence shew any matter of Record or Deeds or Writings or any Sentence in the Ecclesiastical Court or other matter of Evidence by Testimonies of Witnesses or otherwise whereupon doubt in Law ariseth and the Defendant offer to Demur in Law thereupon the Plaintiff cannot refuse to joyn in Demurrer no more than in Demurrer on a Count Replicat c. and so è Converso may the Plaintiff Demur in Law on the Evidence of the Defendant but the King's Council shall not be inforced to joyn in Demurrer A Demurrer to Evidence never denies the truth of the fact but confeseth the fact and denies the Law to be with the Party that shews the fact Plowd Newis and Scholastica's Case If a Demurrer be upon the Evidence the Evidence ought to entred verbatim Keb. 77. Exemplification of a Verdict A Verdict against one whom either the Plaintiff or Defendant claims may be given in Evidence against the Party so claiming Contra if neither claim under it Mich. 1656. B. R. Duke and Ventres If a Verdict pass for two Defendants altho ' by default of ones not putting in Bail They may not have Judgment yet they may exemplifie their Verdict to give this in Evidence to another Jury 2 Rolls Rep. 46. Dennis and Bremblecot In Ejectment brought by a Reversioner or Debt upon the Statute of Tithes Ed◠6. brought by a Proprietor of Tithes after a Verdict at Law the Lessee or the present Proprietor the Reversioner of the Lands or Tithes shall hive advantage of the Verdict and gave it in Evidence And the Reasons are because they cannot be immediate Parties to the Action or Suit for that must be prosecuted by the Lessee or present Tenant and they may give in Evidence as well as the Plaintiff himself Hard. 2. Rep. 472. CHAP. XII Rules for Learning of Special Verdicts Of Estoppels found by the Jury and how they shall bind What is a material variance between the Declaration and Verdict Of priority of Possession Where the Special Conclusion of the Verdict shall aid the Imperfections of it Where and in what Cases the Verdicts makes the Declaration good Verdict Special taken according to intent Difference where the Verdict concludes specially on 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 a Special Verdict Of the finding quo ad residuum certainty
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
that Exception seemed not valid Cr. El. 642. Hemsley and Price So in 3 Rep. Sir George Brown's Case Anthony is found Son but not Heir and yet without his being Heir the Plaintiff had no Title And yet in Cymbal and Sand's Case Cro. Car. 391. Gimlet and Sands the Court seemed to be of Opinion That tho' the Jury found that Humfrey had Issue by Hebell his Wife John unicum filium suum that not finding that he was Heir it was in case of his being Heir to a Warranty collateral was not good for he might have elder Sons by another Venter or there might be an Attainder or the Warranty might be discharged or released io his Life-time 2 Rolls Abr. 701. mesme Case The Jury found a Special Verdict on a Will in which they found A. had Issue two Sons B. and C. and do not find which of them was the elder and which the younger which is material in the Case This Verdict is not good for tho' B. is first named yet it doth not appear by this that he is the eldest Son M. 20 Jac. B. R. Peryn and Pearse Uncertainty as to part of a House The Defendant pleads Not guilty Part of an House the Jury find him not guilty for part and guilty de tanto unius Messuagij in occupatione c. quantum stat super Ripam Per Cur ' the Verdict is insufficient for the Uncertainty for tho' the Certainty may appear to the Jury yet that is not enough the Court ought to give Judgment oportet quod res deducatur in judicium The Court must be informed of the Certainty and it ought to appear to them Had they found him guilty of a Room it had been good So if he had been found guilty of a third part for of them the Law takes notice And an Ejectione Firme was brought for the Gate-house at Westminster and the Jury found the Defendant guilty for so much as is between such a Room and such a Room and it was adjudged good Guilty of a Room is good Marsh Rep. 47. Juxon and Andrews As to Certainty of Acres Ejectione Firme was brought of 400 Acres of Land As to Acres and the Jury find the Defendant quoad all besides three Acres parcel tenementorum praedictorum Not guilty Quoad c. and quoad the three Acres they find special matter and that G. A. the Lessor let the aforesaid three Acres to the Plaintiff and that he was possessed and that the Defendant ejected him out of the three Acres Parcel parcel ' tenementorum praedictorum and they did not find the Ejectment of the aforesaid three Acres c. and it may be the Ejectment was of other three Acres and for this Cause per totam Curiam held ill Cr. El. 642. Hemsley and Price Ejectment of 5 Acres if the Jury find the Defendant guilty in 8 Perches de terre parcel ' tenementorum praedictorum it 's a void Verdict because uncertain and no Execution can be made of Pieces 2 Rolls Abr. 694. Pawlet and Dr. Redman And this is the Difference between Trespass and Ejectment The Plaintiff declares of Trespass in one Acre in D. and abutts it East West North and South Upon Not guilty the Jury finds the Defendant guilty in dimidio Acrae infra script ' the Plaintiff shall have Judgment and so if they had found but one Foot of the Acre And it sufficeth to be found in one Moiety of the Acre bounded in this Action where Damages are only to be recovered But if it were in Ejectment the Verdict had been ill It must be certain in what part the Plaintiff must have his Hab. fac possess aliter in Trespass for it is not certain in what part the Plaintiff shall have his Habere fac ' possessionem Yelv. p. 114. Winckworth and Man In Ejectione Firme the Plaintiff declares of a Messuage 3000 Acres of Land 3000 Acres of Pasture in D. per nomina of the Manor of Monkall and 5 Closes per nomina c. The Jury give a Special Verdict quoad four Closes of Pasture containing by Estimation 2000 Acres of Pasture that the Defendant was not guilty quoad residuum they find the Matter in Law This Verdict is imperfect in all for when the Jury found the Defendant was not guilty of four Closes of Pasture containing by Estimation 2000 Acres of Pasture Quoad residuum must be certain it is uncertain and doth not appear of how much they acquit him and then when they find quoad residuum for the special Matter it is uncertain what that Residue is so there cannot be any Judgment given And a Venire fac ' de novo was awarded Cro. Jac ' 114. Woolmer and Caston In Ejectione Firme de septem Messuagiit sive tenementis De Messuagiis sive Tenementis is ill and the Verdict helps it not and Verdict pro Quer ' it's ill for the Uncertainty and the Verdict doth not help it And Hales refused to let the Jury find for the Plaintiff for the Messuages and Non culp ' for the Tenements But per Twisden had it been de uno Messuagio sive Tenemento vocat ' The Black Swan it had been good because the last part makes it certain Sid. 195. 2 Keb. 80. Cro. El. 186. On Special Verdict in Ejectment the Case was As to Acres and Parishes the Declaration was of several Messuages in the several Parishes of St. Michael St. James St. Peter and St. Paul and that part of the Premisses lie in the Parish of St. Peter and St. Paul and that there is no Parish called the Parish of St. Peter nor none called the Parish of St. Paul Per Cur ' the Copulative Et shall be referred to that which is real and hath existence ut res magis valeat not to make St. Peter's one Parish and St. Paul another but to make them both one Parish and the Words several Parishes are supplied by the Parishes before mentioned as 6 Ed. 3. Praecipe of 10 Acres in A. B. and C. there the Lands must lie in every one of the Vills but if the Praecipe were de Manerio de decem Acris in A. B. and C. there it would be well enough tho' the Manor lay elsewhere provided that ten Acres lay within the Vills aforesaid for then the last words are satisfied by the ten Acres Hardr. 1. 330. Ingleton and Wakeman Yet in Thomas and Kenn's Case P. 38 El. B. R. it 's said in Dyer ult Edit in margine 34. b. Ejectione Firme upon Title of Land of Sir Hugh Portman the Count was of an hundred Acres in D. and S. and Non culp ' pleaded the Jury found the Defendant ejected him of ten Acres only and shews not them in Certain and adjudged a good Verdict and the Plaintiff had Judgment It 's a Rule laid down Where ever but one Acre 〈◊〉 found certain â—ne may release â—ll the rest 1 Rolls 784. Rhethorick
Leon. p. 145. Upon the Habere fac ' Possessionem the Shereiff returned that in the Execution of the said Writ he took the Plaintiff with him Where the first Writ is not fully executed the Court will grant a new 〈◊〉 and came to the House recovered and removed thereou◠a Woman and two Children which were all the persons which upon diligent search he could find in the said House and delivered to the Plaintiff peaceable Possession to his thinking and afterwards departed-and immediately after three other persons who were secretly lodged in the said House expulsed the Plaintiff again Upon notice of which he returned again to the said House to put the Plaintiff in free Possession but the others did resist him so as without peril of his Life and of them that were with him in Company he could not do it And upon this return the Court awarded a new Writ of Execution for that the same was no Execution of the first Writ and also awarded an Attachment against the Parties 1 Leon. 145. If the Sheriff delivers more Acres than are in the Writ If the Sheriff delivers more Acres than are in the Writ this makes not the Writ Erroneous but Action on the Case lies against the Sheriff for doing it but if the Writ of Hab. fac possessionem contains more Acres of Land than were in the Declaration the Writ is Erroneous Upon Ejectione Firme Where Habere fac possession shall be after the year without Scire fac and Judgment Hab. fac possessionem shall be after the year without a Scire fac as to the Damages yet it s not absolutely requisite that there should be any Scire fac as to the Land for if the party take Possession of other Land than he ought Trespas lies 1 Sid. 351. Okey and Vicars Scire fac ' is given in personal Action per Stat. W. 2. where the remedy was after the year to commence a new Action on the same Judgment which cannot be in this Case as to Land tho' it may be as to Damages on Judgment for Damages Costs or Debt there must be a Scire fac ' for here is a person certain charged not so in Hab. fac possessionem 2 Keb. 307. Mesme Case but the Hab. fac Possessionem shall not be granted an year after the Judgment without a motion in Court Not to be granted after the year without a motion in Court And if it be once executed tho' the parties are turned out presently by a trick yet they may not have new Hab. fac possessionem without motion of the Court Siderf pag. 224. Note It was a Question in one Hills's Case upon the Statute of Maintenance A Man was out of Possession and recovered in Ejectione Firme and was put in Possession by Habere fac possessionem Whether he might sell presently and adjudged he might God b. 450. Upon the Hab. fac possessionem the Sheriff may break open the House to deliver Possession 5 Rep. 91. Return de Hab ' fac ' Possessionem cum Fieri fac Virtute istius brevis mihi direct ' 24 die Maij anno infra scripto Habere feci infra nominat ' H. H. Possessionem Termini sui infra scripti de Tenementis infra script ' cum pertin ac etiam Fieri feci de Terris Catallis infra nominat ' W. W. 20 s. parcel damnor infra script denarios illos haber coram Justiciarijs infra script ad diem Locum infra content ad reddend ' prefac H. prout interius mihi precipitur Of Misdemeanors in Possession In Ejectment Declarations were delivered and on Verdict Evidence was found for the Plaintiff against some and Judgment against the Casual Ejector for others in the whole 47 Houses Upon colour of Hab. fac possessionem the Sheriff turns out of Possession these 47 Tenants and 80 other Tenants also without any Process or Plea against them for the Execution of which Writ the Sheriff took of the Plaintiff 200 l. for Fees 1. The Court would not grant any Writ to supersede this Execution against the 80 for if so then it ought to be Quia erronicè and there was not any Error in the proceedings against them because there was no proceedings against them but they may bring Trespass against the Sheriff Sheriffs Fee and the Sheriff shall be indicted for Extortion for they cannot take such Fees in case of real Estate as personal 2 Sid. 155. There is a remarkable Case in Siderf 254. the King against Farr Farr being a Sollicitor had obtained a Judgment against the Casual Ejector upon which he Sues Hab. fac possessionem and the Sheriffs Bay liffs enter the House with him and break the Door where the Goods were and take the Woman to whom the House and Goods belonged and required of her Special Bayl and for want of it brought her to Newgate then Farr took the Goods which were of great value And upon Tryal at the Old-Bayly it appeared That Farr did this with intent to take away the Goods and had no colour of Title to the House for his Client He was found Guilty of Felony and was hanged not being able to Read tho' he were a Sollicitor The Court was moved for an Attachment against J. upon an Affidavit that he had ejected one out of Possion that was put in by Hab. fac possessionem and that in a very Riotous manner and had imprisoned the Party so put out of Possession The Council on the other side answered That the party came into the Land by vertue of an Eigne Judgment and an Extent upon it Rolls here is Title against Title therefore take your Course in Law for we make no Rule in it Stiles p. 318. Fortune and Johnson's Case Verdict for the Plaintiff was found in Ejectment But upon Agreement made between the Plaintiff and Defendant The Defendant was to hold the Land recovered for the remainder of his Term to come and according to this Agreement he held it for two years but afterwards before his Term expired the Plaintiff takes out an Hab. fac possessionem and executes it It was moved That the Defendant might have a Rule for Restitution Per Cur. it cannot be Take your Action on the Case against the Plaintiff for not performing his Agreement Stiles Rep. 408. Wood and Markham CHAP. XV. Of Action for the mean Profit 's In whose Name What Evidence shall be given in this Action or not THe Action for the mean Profits on the Judgment in the Ejectment In whose name shall be in the name of the Lessee during his Term. And note What Evidence shall be given in this Action In this Action no Evidence shall be given as to the Right which must be if the Action should be in the Lessors name and therefore he can have no such remedy 1 Keb. 731. Sadler and Taylor A Tryal at Bar was prayed in Action for mean Profits But the Court denied it
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
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
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
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