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
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
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
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
difference was taken Per Cur ' By intendment and Construction of Law Demand of a part without shewing into how many parts divided when any parts are demanded without shewing in how many parts the whole is divided that there remains but one part not divided as if two parts are demanded there remains a third part and when three parts are divided there remains a fourth part But if any demand be of other parts in other Form there he ought to shew the same specially as if one demands three parts of five parts or four parts of six c. 13 Rep. 58. Declaration in Ejectment is Quod cum such an one dimisit Declaration in Ejectment with Quod cum is good not so in Trespass it 's good here because he cannot have the Action without a Lease but in Trespass as Assault and Battery c. it is not so And Dodderidge took this difference Where the thing on which the Action is brought hath continuance and where the Action is brought for a thing done and past In Ejectione Firme there the Lease hath still Continuance and there such a Declaration with a Quod cum is good because it is in the Affirmative but where the thing is past as Battery it ought not to be with a Quod cum 2 Bulstr 214. Sherland's Case As for the manner of declaring in respect of the thing demised vid. supra titulo Of what things an Ejectment lies To which I shall add one Case in the Exchequer Ejectment for so many Acres of Meadow and so many Acres of Pasture on Non culp ' the Jury find a Demise de Herbagio Pannagio of so many Acres De Herbagio Per Cur ' by the same Reason that an Ejectment lies of a Lease of Herbage by the same Reason the Plaintiff ought to declare accordingly and Herbage does not include all the Profits of the Soil Herbage does not include all the Profits of thd Soil but only part of it Hardr. 330. Wheeler's Case in Scacario The Form of a Declaration from a Parson of Rectory and Tenements in B. R. with an Averment of the Parson's Life 1 Rep. 149. Chedington's Case The Form of a Declaration in Ejectment in the Common Pleas. Mich. 16 Car. 2. Tempest Midd ss A. B. nuper de London Gen attachiat fuit ad respondend W. I. de plito quare vi armis unum Messuagium unum Gardinum decem acras terre tres acras prati quatuor acras pasture cum pertinentiis in H. que S. W. vid eidem W. dimisit ad terminum qui noudum preteriit intravit ipsum a firma sua predict ejecic alia enormia ei intulit ad grave damuum ipsius W. contra pacem Dom Regis nunc c. Et unde idem W. p I. S. Attornat suum queritur qd cum predict S. primo die Octobris Anno Regni Dom Regis nunc quinto decimo apud H. predict dimisit prefat W. Tenementa predicta cum pertin habend eid W. assignat luis a Festo Sancti Michaelis Archangeli tunc ultimo preterito usque finem terminum quinque annorum extunc ê“xime sequen plenarie complend finiend virtute cujus dimissionis idem W. in Tenementa predicta intravit fuit inde possessionat Et sic inde possessionat existen predict A. postea scilicet eod primo die Octobris Anno Regni dict Dom Regis quinto decimo supradicto vi armis c. in Tenementa pÌ„dicta cum pertin que pÌ„dict S. pÌ„fat W. in forma pÌ„dicta dimisit ad terminum pÌ„rict qui nondum preteriit intravit ipsum a firma sua pÌ„dicta ejecit ac alia enormia c. ad grave damnum c. contra pacem c. On. de dicit quod deteriorat est damnum het ad valentiam decem Librarum inde ê“duc Sectam Et pÌ„dict A. p G. I. Attornat suum ven defend vim injuriam quandque c. I. Lo. usque Octab Hillarij In the King 's Bench. TH. queritur de Iacobo W. Wart ss in custod Marr Marese Dom Regis coram ipso Rege existen ê“ eo videst quod cum H. M. Gen ultimo die Ianuarij Anno Regni Dom nostri Caroli secundi nunc Regis Anglie c. vicesimo apud B. in Com predict dimisisset concessisset ad firmam tradidisset pÌ„fato T. unum Messuagium duas Aâ—ras Pasture cum pertiu scituat jacen existen in B. pÌ„dice habend tenend renementa pÌ„dicta cum pertin prefato T. assignat luis a vicesimo quinto die Decembris tunc ult pÌ„teris usque plenum finem terminum quinque annorum extunc ê“xime sequen plenâ—rÌ„ finiend complend virtute cujus quidem dimissionis idem T. in tenementa pÌ„dicta cum pÌ„tin intravit fuit inde possessionat quousque pÌ„dict Iacobus postea scilt eodem ultimo die Ianuarij anno Regni dict Dom Regis nunc vicesimo supradict vi armis c. in tenementa pÌ„dicta cum pertinen in super possessionem ipsius T. inde intravit ipsum T. a possessione sua predict termino suo pÌ„dict inde nondum finit ejecit expulit amovit ipsumque T. a possessione sua pÌ„dict extratenuit adhuc extratenet alia enormia ei intulit contra pacem dict Dom Regis nunc ad damnum ipsius T. 20 l. Et inde ê“due Sectam c. In the Office of Pleas in the Exchequer A. B. Derb ss debitor Dom Regis nunc venit coram Baronibus hujus Scacarij duodecimo die Februarij hoc Termino p C. D. Attorn suum queritur p Billam versus E. F. pÌ„sent hic in Curia eodem die de plito Transgressionis Ejectionis Firme pro eo videlt qd cum quidam I. B. secundo die Feb Anno Regni dict DonÌ„i Regis nunc vicesimo primo apud c. ê“ut supra in B. R. ad vamnum ipsius A. decem Librarum Quo minus c. Et inde producit Sectam c. A Copy of the Declaration you must leave with the Occupier of the House and Land with this or the like Indorsement JAmes B. yon may perceive that I am sued for the Messuage and Lands within mentioned being in your Possession these are therefore to desire you to defend your Title or else I shall suffer Judgment to be entred by default Or thus UNless the Tenant in Possession or they under whom he claims do next Trinity Term appear to this Declaration and make him or themselves Defendants thereunto and by Rule of Court confess the Lease Entry and Ejectment and insist only upon the Title at the Trial the Defendant in this Declaration will confess Judgment and Possession will be delivered accordingly to the Plaintiff and you turned out of Possession Your Friend J. D. To A. B. Tenant in Possession of the Premisses within mentioned To this
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
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
the Custom be not well found it was not found in that Case that the Land was demisable according to the Will of the Lord and so it may be free-Free-Land and the Custom did not extend to it nor is it found that the Parties to whom the Lettor of Attorney was made to surrender were customary Tenants and then the primer Possession by the Defendant will make a Disseisin and Judgment pro Quer ' In Ejectment prior Possession is a good Title against the King's Presentation In Ejectment prior Possession a good Title against the King's Presentation not so in a Quare Impedit but not so in a Quare Impedit for there the Incumbent ought altho' Defendant to make a Title against the King's Presentation without Title as is the Book 7 H. 4. 31. but if the Incumbent be in by Entry of his own Head without Presentation it is not sufficient in either 1 Keb. 503. Brown and Spencer 3. Si constare poterit that it is the same Land it is good The Special Verdict is good si constare poterit that it is the same place and the same Land in the Declaration mentioned although it be not found expresly and although the Jury find not that it is the same Land in the Declaration mentioned yet if they find the Entry and Ejectment according to the Declaration it is sufficient and therefore the Mistake of a Letter or Addition of a Word shall not hurt the Verdict si constare poterit c. Siderf p. 27. Hoare and Dix 4. The Special Conclusion of a Special Verdict shall aid the Imperfections of it In many Cases the special Conclusion of a Special Verdict shall aid the Imperfections of it If the Jury find a Special Verdict and refer the Law upon that special Matter to the Court although they do not find any Title for the Defendant which is a collateral thing to the Point which they refer to the Court yet the Verdict is good enough for all other things shall be intended except this which is referred to the Court. As in Ejectment if the Plaintiff declare upon a Lease made by A. and the Jury find a Special Verdict and matter in Law upon a Power of Revocation of Uses by an Indenture and Limitation of new Uses and then a Lease for years made to the Plaintiff by the Lessor in the Declaration and another in which there is a perfect Variance but they conclude the Verdict and refer to the Court whether a Grant of a new Estate found in the Verdict be a Revocation of the first Indenture or not The special Conclusion shall aid the Verdict so that the Court cannot take notice of the variance between the Lease in the Declaration and the Verdict because the doubt touching the Revocation is only referred to the Court. And although they refer to the Court whether this be a Revocation of the first Indenture and not of the former Uses or Limitation of new Uses as it ought to be yet in a Verdict this is good for their intention appears Intent But where the Jury find specially and furthermore conclude against Law Where the Verdict is good and the Conclusion ill Diversity between a geneneral Conclusion and a special Conclusion the Verdict is good and the Conclusion is ill and the Court will give Judgment upon the special Matter without having regard to the Conclusion of the Jury 5. Rep. 97. Litt. Rep. 135. 2 Keb. 362 412. 11 Rep. 10. Moor 105 269. So note this Diversity between a special Conclusion of the Jury and Reference to the Court and a general Conclusion and Reference to the Court A Special Verdict may make the Declaration good A precise Verdict may make the Declaration good which otherwise would be ill as the Declaration is of Lands in Sutton Coefeild and the Verdict finds the Lands in Sutton Colefeild and the Deed is of Lands in parva Sutton infra Dominium de Sutton Colefeild so neither the Verdict nor Deed agree with the Declaration for the Vill where the Lands lie therefore no Judgment ought to be given But per Cur ' the Verdict finding Seisin de infra script ' messuag ' that is quasi an express Averment and finding that Sutton Coefoild and Sutton Colefeild parva Sutton infra Dominium Sutton Colefeild are all one and that they be all in one Parish and this being in a Verdict when the Jury found Quod dedit tenementa infra script ' by Name in the Deed shall be intended all one So it s aided by the finding of the Jury who find expresly that the Bishop dedit Tenementa infra Script Cr. Jac. 175. Ward and Walthow Yelv. p. 101. Mesme Case 5. The Judges are not bound by the conclusion of the Jury as in Ejectment on a void the Jury find Lease Lease that if the Entry of the Daughter was not congeable the Defendant is Guilty Now the Judges are not bound by the conclusion of the Jury but may Judge according to Law as 10 Ed. 4. f. 70. Trespass was brought against the Lord for Distraining The Jury found for the Plaintiff But because the Statute of Marlbudge is non ideo puniatur Dominus c. The Court shall adjudge for the Defendant So is the Rule in Plowd Com. 114. b. when the Verdict finds the fact but concludes upon it contrary to Law the Court shall reject the conclusion as in Amy Townsend's Case The Jury find precisely that the Wife was remitted which was contrary to Law for their Office is to judge of matters of Fact and not what the Law is So if the Jury collect the contents of a Deed and also find the Deed in haec verba The Court is not to Judge upon their Collection but upno the Deed it self Moor p. 105. Lane and Cooper And yet the Court is sometimes bound by the conclusion of the Jury as in Ejectione Firme of one Acre The Jury find the Defendant Guilty of one Moiety and a Special Verdict for the residue and conclude if the Court shall find him Guilty of all then c. The Plaintiff cannot have Judgment upon this for a Moiety if the Court shall not adjudge him Guilty of the whole for the Special conclusion cited 1 Rolls Rep. 429. 1. Verdict to be taken according to Intent Special Verdict shall be taken according to Intent and the Court must make no more doubts than the Jury does the finding matter of Fact being only the Jurors Office as 5 Rep. Goodales's Case The doubt was whether the payment of 100 l. with agreement to have some part of it back again were sufficient upon a Condition to defeat the Estate of a Stranger The Court regarded not that there was no Title found for the Party that made the Entry whereupon the Action was brought Ejectione Firme was brought by G. against W. upon Not guilty the Jury concluded their doubt upon performance of a Condition When the
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
in Fine and Nonclaim the Fine must be shewed with Proclamations under Seal ibid. Copy of a Recovery given in Evidence ibid. Inspeximus how far it is Evidence ibid. Transcript of a Record or Inrolment of a Deed may be given in Evidence and how 154 Evidence as to Matters of Fait 157 Who to shew the Original Deed in Evidence 155 Where a Deed shall be proved by Testimony without shewing it 156 A Deed cancelled by Practice may be shewed in Evidence ibid. Copies where Deeds are burnt good Evidence ibid. Copy out of a Leiger-book no Evidence 152 Copy of a Counterpart allowed to be Evidence ibid. Thô Seals be broken off yet a Deed may be given in Evidence ibid. Where Copies of Court-Rolls may be given in Evidence ibid. A Will under which a Title of Land is made must be shewed it self 158 Where Bills Answers Depositions shall be good Evidence 159 Where Copy of a Bill shall be read in Evidence 159 160 Where an Answer in Chancery shall be good Evidence or not Where and in what Cases Depositions shall be read at a Tryal or not 162 Exemplification of Depositions if Evidence ibid. Decree or Decretal Order where allowed to be Evidence 164 Pedigree where allowed to be Evidence or not what Matter may or must be pleaded and what Matter may or must be given in Evidence 165 Condition to defeat a Freehold found by Jury ibid. What Evidence the Jury shall have with them after Evidence given 166 What shall be good Evidence to make a Title 167 Evidence as to an Appropriation 168 VVhere constant enjoyment is good Evidence ibid. VVhat is good Evidence to prove Lands parcel of a Priory or not 170 VVhat Evidence shall be said to maintain the Issue ibid. Estoppels found by Jury and how 165 A Man ousts the Executors of his Lessee â—r years what Remedy EXECUTION Execution in Ejectment 230 How Execution shall be where there are two Defendants one confesseth and the other is found Not guilty Execution on Recovery by Baron in Ejectment of the Wife's Term 239 If a Man recover in Ejectment against J. S. who after dies he must sue Execution against his Heir for by intendment J. S. his Ancestor was a Disseisor ibid. Extent of a Rectory on Elegit 169 Remedy against undue Extent on Elegit by Ejectment 19 Exemplification of a Verdict 175 ERROR Of what Error the Court shall take Conisance without Certificate 257 Variance between the Writ and Declaration ibid. Variance between the Record and the Writ of Error 258 Nonage in Issue upon Error where to be tried ibid. Amendment of the Judgment before a Certiorari awarded in Error 262 Release of Errors from one of the Plaintiffs in the Writ of Error shall only bar him that released it and why ib. Outlawry of one of the Defendants pleaded in Error 263 Error without Bail a Supersedeas ibid. Release by casual Ejector a Fraud 265 266 Error in Ireland 268 G. Difference between a Guardian and Prochein Amy 30 H. Habere fac ' possessionem how to be executed 242 How the Sheriff is to esteem the Acres 243 VVhere Delivery of one Messuage by the Sheriff in the name of all is good or not ibid. How the Sheriff is to give Possession of a Rent or Common ibid. Hab. fac possessionem is good without Retorn 244 How awarded into Ireland ibid. In what Cases and when a new Hab. fac possessionem may be awarded 244 245 Not to be granted after a Year without Motion 248 Of Misdemeanor in giving Possession 249 I. Inspeximus how an Evidence or not in Ejectment 153 INTENDMENT Reversion shall be intended to continue 190 Where a Lease shall be intended to be in being 191 VVhere a Dying seised shall be intended 192 Incertainty in Special Verdict Vid. Verdict Writ of Inquiry in Ejectment and the Entry 224 Stranger may enter notwithstanding Judgment in Intrusion â—7 Judgment in Intrusion what ibid. Ejectment by Joyntenant 75 Of Issue in Ejectment 139 JUDGMENT Judgment against ones own Ejector when to be entred 240 No Judgment against the casual Ejector but by Motion 104 No Judgment upon Nihil dicit but upon Motion 239 In what Cases and for what Causes Judgments in Ejectment are erroneous 233 Judgment was reverst for not severing by number of Acres and yet entire Damages 234 Plaintiff brings a Writ of Error and Judgment is reversed what Judgment he shall have 235 In what Cases Judgments shall be amended 236 After Judgment the Court of Equity would not relieve in case of a Mortgage 239 Writ of Error lies upon the Judgment by Nihil dicit before the Retorn of the Writ of Inquiry and why Chap. Judgment The Form of entring Judgments in Ejectment 227 How the Entry is when part is pro Quer ' and part against him ibid. Judgment against several Ejectors 228 The Plaintiff shall be in Misericordia but once 229 One of the Plaintiffs died during a Curia advisare vult it shall not stay the Judgment 230 Suggestion to be entred on the Roll one Defendant being dead after Nonsuit 231 After Verdict and before Judgment the Plaintiff dies and Judgment given for him the same Term 232 Of pleading to the Jurisdiction 113 JURY Another Person sworn on the Jury who was not retorned no Error lies because an Estoppel 136 What Evidence the Jury shall have with em after Evidence given 166 Jury find the Interest of the Land came to the Lessor but shew not how 193 K. Lessee of the King may bring Ejectione Firme tho' the King be not put out of the Freehold 20 L. Of the Ejectment Lease 46 The Defendant not to confess Lease Entry and Ouster for any more than is in his Possession 39 In what Cases the Court will give leave to return the General Confession of Lease Entry and Ouster 40 Of the Defendants refusal to confess Lease Entry and Ouster and the consequence 40 41 Where the Confession of Lease Entry and Ouster shall supply an actual Entry or not 42 43 The Term in the Ejectment Lease enlarged 46 After Default in Ejctment the Defendant may confess Lease Entry and Ouster Lease to Try a Title no Maintenance 47 Ejectment brought on a Lease made the â—ame Term ibid. Commencement of Leases 68 69 70 Where the Lease shall be intended to be delivered on the Day of the Demise and not of the Date 71 Lease not warranted by the Declaration 83 Why the new Rule of confessing Lease Entry and Ouster was introduced 115 Lease recited in the Release was admitted to be proved by Witnesses to the Release without shewing the Lease it self 156 What notice the Court takes of the Lessor of the Plaintiff 233 Jury find Virtute literarum patentium and find not the Letters Patents under Seal 19â— M. Ejectment of a Manor how to be brought 52 201 Manor in Reputation 196 The Defendant in Ejectment not to give in Evidence a former Mortgage made by himself 169 O. Person Outlawed may bring