in Misericordia if it be supposed good The Court held them to be manifest Errors and assignable by the Defendant Hob. 108. Latch 61. Cr. Jac. 113. 1 Keb. 110. Hammond and Conisby But I conceive that is not Law for in Hammond and Conisby's Case Ejectione Firme was of a Manor upon Not guilty there was a Verdict pro Quer. for the Manor and quoad the Services Not guilty Error was assigned because the Verdict is not for the Plaintiff for the Manor because as to the Services it is for the Defendant Surpluse in a Verdict But per Cur. The last part of the Verdict shall be taken general for the Plaintiff Sid. 232. Ejectione Firme of a Messuage On Not guilty the Jury find the Defendant guilty of 2 parts of the House It was alledged in Arrest of Judgment That the Verdict has not found the Defendant Guilty according to the Count which is of a Messuage an entire thing Manwood contra Omne majus continet in se minus but if the Declaration had been of 2 parts of a Messuage and on Not guilty the Jury had found him Guilty of the entire House The Plaintiff shall not have Judgment Savill 27. In Ejectione Firme of a Messuage if it be found that a little part of the House is Built by incroachment upon the Land of the Plaintiff and not the Residue yet the Plaintiff shall recover for this parcel by the name of an House It 's laid down positive in Ablett and Skinner's Case in Sid. The Verdict may be of fewer parts than the Declaration p. 229. that the Verdict may be of fewer parts than in the Declaration As on Tryal at Bar in Ejectment the Declaration was of a fourth part of a fifth part in five parts to be divided and the Title of the Plaintiff upon the Evidence was but of a third part of a fourth part of a fifth part in five parts to be divided which is but a third part of what is demanded in the Declaration It was said the Plaintiff cannot have a Verdict because the Verdict in such Case ought to agree with the Declaration but per Cur ' the Verdict may be taken according to Title and so it was But Qu. how the Habere fac ' shall be executed If the Verdict in Ejectment contain more than the Declaration If the Verdict contain more than the Declaration the Plaintiff may release his Damages the Plaintiff may release the Damages Q. if he may release part of the Land Sid. p. 412. Ejectione Firme of the Manor of Dale on Non Culp ' pleaded the Jury find quoad unum Messuagium parcel ' As to a Manor Manerij praedict ' guilty quoad resid Not guilty It is moved he cannot have Judgment the Action is brought of the Manor and the Jury find him guilty of one House only so he cannot have his Judgment according to his demand So Delabar and Hudlestone's Case Ejectment of a Rectory and upon Non culp ' pleaded the Defendant was found guilty of Tythes without the Glebe and he could not have Judgment the Glebe being the Principal So Ejectione Firme of a Manor and proves only the Rents he shall not have Judgment Ejectment was of an House the Special Verdict was That the Plaintiff was seised in Fee and if there be several things laid in Ejectione Firme If several things are laid in Ejectione Firme and the Jury find the Defendant guilty in one the Plaintiff shall have Judgment of that as House Garden c. and the Jury find guilty of one only the Plaintiff shall have Judgment of this In Delabar's Case it was not found that the Tythes were parcel of the Rectory and so it differs from this Case In Ejectione Firme of a Manor and ten Acres it is no Plea that the ten Acres are parcel of the Manor aliter in Entry in the nature of an Assise Adjornatur The Jury find the Defendant guilty of one Moiety and for the other Moiety a Special Verdict this is no Error for the Jury may conclude upon the Moiety Where the Jury may conclude upon a Moiety or not for it may be he entred into one Moiety and not into the other but if he declares upon the whole they cannot find him guilty of a Moiety 3 Bulstr. 229. Milward and Watts But if one declares in Ejectione Firme upon a Fence made in certain Lands and he has Title but for a Moiety the Jury are not to conclude upon the Moiety for they are not to judge upon this but the Court. Where a dying seised or possest must be found A Man by his last Will and Testament devised all his Fee-simple Lands whatsoever to his Brother on Condition he suffer his Wife to enjoy all his Free Lands in H. duâ—ing her Life and the Jury found the Testator had only a Portion of Tythes in H. but they did not find the Testator died seised of the Tythes which without doubt had been ill upon the Demurrer And Rolls said He would see the Notes by which the Special Verdict was drawn up if that could help it For they all agree the Verdict ought to have found the Dying seised Stiles Rep. 279. Saunders and Rich. In Ejectione Firme if the Jury find a Special Verdict That J. S. was seised of the Manor of D. in his Demesne as of Fee of which Manor of Copyholder in the place where c. does waste by the cutting down an Oak and that after J. S. dies and the Lessor of the Plaintiff being his Cousin and Heir enters into the Manor and into the Place where c. for the said Forfeiture and was of this seised in his Demesne as of Fee and concludes si super totam materiam c. this is not a good Verdict because it is not found that J. S. died seised of the Manor and that this discended to the Lessor as his Cousin and Heir for it may be J. S. aliened the Land and that the Father of the Lessor or the Lessor himself might repurchase it and that he was also Cousin and Heir to J. S. for although it be in a Verdict yet it shall not be intended that the Fee continued in J. S. at his death and that he died seised thereof without finding of it P. 1 Car. 1. Cornwallis and Hammond Of Uncertainty in Special Verdicts As to Persons As to Acres and Parcels As to the Place or Vill. As to time As to Persons One deviseth all his Lands to E. his Wife for Life the Remainder to F. his Daughter in Tail the Remainder to the eldest Son of William his Brother in Tail Remainder over E. enters F. dies without Issue they find Gertrude Cousin and Heir to F. who levied a Fine but they find not Gertrude was Heir to the Devisor Do not find Heir and it may be althô F. was the Daughter the Devisor might have a Son or that she was Heir to him by a second Wife yet
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
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
Jury found he delivered the Lease upon the Land but found not that he had entred and claimed Cr. Eliz. 167. Willis and Jermin And in Goodall's Case 5 Rep. it was resolved That all matters in a Special Verdict shall be intended and supplied but only that which the Jury refer to the Consideration of the Court. Also in Molineux's Case Cr. Jac. 146. It was excepted to a Special Verdict That the Life of B. who was Tenant for Life A Life and the Lessor in the Action was not found But per Cur. it shall not be intended that she is dead unless it been found And in a Special Verdict all necessary Circumstances shall be intended unless found to the contrary Some things shall not be intended But some things the Court shall not intend as in Sadler and Draper's Case Sir Thomas Jones p. 17. where the Case was whether the next of the Blood being of the half Blood i. e. whether the Brother of the half Blood of the Mother of an Infant shall be Gardian in Socage of Land by discent on the part of the Father Cro. Eliz. 825. But because the Verdict did not find that the Lessor of the Plaintiff who claims to be Gardian in Socage was proximus in sangine à quel c. that the Court shall not intend it and so no Title found pro Quer. Ideo nil cap. per Bill If the Jury find a Special Verdict viz. A. deviseth his Lands to his Executors quousque they shall Levy such Money or his Heirs shall pay to them the said Sum and conclude upon the matter si c. but they do not find the Heir had not paid the Money Difference between the Condition and Limitation of an Estate as to the finding by the Jury This quousque the Heir pay the Money is parcel of the Limitation of the Estate which ought to have been found Otherwise the Court who is to Judge upon the whole matter shall not intend it Tr. 19. Jac. B. R. Langley and Pain But if in a Special Verdict the Jury find J. S. was seised in Fee of Land and made his Will and by it deviseth all his Estate to B. paying Debts and Legacies and refer to the Court the matter in Law viz. whether a Fee passeth by this but find not that B. had paid the Debts and Legacies yet this is a good Verdict because it is a Condition properly and not a Limitation Tr. 1651. Johnson and Kerman yet if the Verdict find that J. S. was seised in Fee of Land and possest of certain Leases for years of other Lands and by his Will deviseth his Leases to J. D. and after deviseth to his Executors all the Residue of his Estate Mortgages c. his Debts being paid and his Funeral expences discharged this was not a perfect Verdict the matter in Law referred to the Court being whether the Executors had an Estate in Fee by this Devise in as much as it is not found that the Debts were paid c. which is a Condition precedent so as the Executors cannot have it till the Debts paid and venire de novo granted Hill 10 Car. 1. B. R. Wilkinson's Case Vide 2 Leon. 152. Allen and Hill's Case Condition must be punctually found To this purpose it is laid down often in our Books as a Rule Finding the substance of the Issue is sufficient That if the Jury find the substance of the Issue it is sufficient as in Ejectment of a Manor If the Jury find there were no Freeholders and so it is no Manor in Law yet it being a Manor in Reputation and so the Tenants pass by the Leases therefore this Verdict is found for him who Pleads the Lease of the Manor for the substance is whether Bargain and Sale de modo irrotulat ' and not said in six Months its good in a Verdict but not in a Plea 3 Keb. 180. vide supra Corbet and Stones's Case If in Ejectment a Lease is pleaded of a Manor c. and the Issue is quod non dimisi◠manerium and the Jury give a Special Verdict That there were not any Freeholders but diverse Copyholders of the Manor and that it was known by the name of a Manor tho' it was not any Manor in Law for default of Freeholders and tho' this was alledged in pleading to be a Manor Manor in reputation and not in strict Law which pleading is made by learned Men and tho' this was in an Action adversary and not amicable yet for as much as the Issue is triable by the Lay-gents and in truth the Tenements in which c. pass by the Lease the Verdict is found for him that Pleads the Lease of the Manor for the substance of the Issue is whether it were demised or not Vines and Durham's Case cited 6 Rep. 77. in Sir Moyle Fincheb's Case 8. What one cannot plead shall be found by Verdict It is a Rule in Law in such Actions in which one cannot Plead there the matter to be pleaded shall be found by Verdict and this well but where the Party may Plead there the same is to be pleaded by him 1 Bulstr 166. The Jury may find a Warranty being give in Evidence for in Ejectment from Trespass and in Act on the Satute of 5 R. 2. cap. 7. A Warranty is not to be pleaded or other personal Action The nature of a Warranty and to have benefit thereby is to be by way of Voucher and Rebutter in a real Action and must Plead or lose the benefit of it but in personal Actions Collateral Warranty cannot be pleaded by way of Bar yet it may be given in Evidence to a Jury and the same is to be found by Verdict of the Jury Vid. ibid. Heywood and Smith 9. If any thing be omitted in the Declaration or if more is put in the Declaration than is found by the Jury if it makes a material variance between the Declaration and the Verdict the Action shall abate as if a Declaration in Ejectment be of a Lease of three Acres a Lease of a Moiety will not Warrant the Declaration But if the variance be by way of Surplus or Defect if it be not material in the extenuation of the Action or Damages Action will lye 10. Verdict by presumption The Jury may give a Verdict by presumption as to find Livery in respect of long Possession but if they find the matter Specially the Court will not adjudge this a Livery 1 Rolls Rep. 132. 11. A Verdict that finds part of the Issue and nothing for the residue is sufficient Vide postea 12. Fraud ought not to be presumed unless it be expresly found 2 Rep. 25. 10 Rep. 56. Cr. Car. 549. Crisp and Pratt Where and in what Cases Entry must be expresly found or not and of the force of the words prout lex postulat In Horewood and Holman's Case 2 Bulst 29. Lands are given to the use of a Man and his Wife