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
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
the new Practice upon Not guilty pleaded the Title is only to be insisted on at the Trial yet in some Cases special Pleas may and ought to be pleaded in Ejectione Firme especially in inferiour Courts which I shall first treat of and then give a little touch as to the special Pleading formerly in use in this Action that so the Reader may not be totally ignorant thereof But first What shall be a good Plea in Abatement Per Cur ' That the Plaintiff had another Ejectment depending It is a good Plea in Abatement of Ejectione Firme in B. R. that the Plaintiff had another Ejectment for the same depending in the Common Bench Moor p. 539. Digby and Vernon In Ejectione Firme Action commenced and the Term expires pendant the Suit if the Term be expired before the Action brought the Writ shall abate because he ought to recover the Term and Damages but if he commence the Action before the Term expire and it expires pendent the Writ there it shall not abate but he shall recover Damages Dyer 226. Entry of the Plaintiff hanging the Writ Entry of the Plaintiff hanging the Writ shall abate the Writ In Williams and Ashet's Case the Defendant would have pleaded Entry after the Verdict in Abatement of the Writ Entry after the Verdict and before the day in Bank is not Error but it was hold clearly he had not day to plead it but it is put to his Audita Querela But in Parkes and Johnson's Case in Ejectione Firme the Error assigned was That the Plaintiff after Verdict and between the day of Nisi prius and the day in Banco had entred whereby his Bill was abated and demurred thereupon Per Cur ' this cannot be assigned for Error for it proves the Bill is abateable but is not abated in fait neither is it material to assign it for Error for upon such Surmise which goes only in Abatement the Judgment shall be examined Cro. El. 181. Ashet's Case Cro. El. 767. Parks and Johnson The Plaintiff declares of one Messuage and forty Acres of Land in Stone Abate because he shews not in which of the Vills the Lands lie The Defendant imparles till another Term and then pleads That within the Parish of Stone are three Vills A. B. and C. and because the Plaintiff does not shew in which of the Vills the Lands lie he demands Judgment of the Bill quod ob causam praedict ' Billa praedicta cassetur The Plaintiff demurs and adjudged for him After Imparlance no Pleading in Abatement and why For 1. after Imparlance the Defendant may not plead in Abatement of the Bill for he had accepted it to be good by his Entry into defence and by his Imparlance 2. Reg. Where a Man pleads in Abatement he ought to give to the Plaintiff a better Writ The matter of the Plea is not good because the Defendant does not shew in which of the Vills the Messuage and forty Acres lie And where a Man pleads in Abatement he ought to give the Plaintiff a better Writ and upon Demurrer there shall be a Respondeas Ouster Yelv. 112. Tomson and Collier After Verdict for the Plaintiff the Question being brought against Baron and Feme that the Husband was dead since the Nisi Ejectment against Baron and Feme Baron died since the Nisi prius and before the day in Bank the Action continued against the Wife prius and before the day in Bank and whether the Bill should abate in all or should stand against the Feme was the Question and because it is in Nature of an Action of Trespass and the Feme is charged for her own Fact it was adjudged that the Action continued against the Feme and that Judgment should be entred against her sole because the Baron was dead Cro. Jac. 356. Rigley and Lee. Ejectione Firme by J. S. against N. and O. N. Where the Plaintiff by his demand confesseth the Writ abateable appears and pleads the General Issue and Process continues against the other until he appears and then he appears and pleads an Entry into the Land puis darrein Continuance Judgment de Brev ' The Plaintiff upon this Plea demurs in Law Curia advisare and in the interim the first Issue was found pro Quer ' versus N. and the Plaintiff prays his Judgment He shall not have it because the Plaintiff by Demurrer in Law had confessed the Writ abateable and the Writ by the Entry of the Plaintiff was abated in as much as the Term is to be recovered Dyer 226. Nevill's Case To the same purpose is the late Case of Boys and Norcliff In Ejectione Firme the Question was if the Entry into the Land after the day of Nisi prius and before the day in Bank may be pleaded in Abatement and if such Entry puis darrein Continuance be a Plea in Abatement Note this was in Error out of the Common Bench and held by the Court of the King's Bench that it is not Error yet entry will not revive the Term because it's only in Abatement Entry before the Nisi prius to be pleaded at the Assises and there is a Diversity between this and Death 1 Bulstr 5. And it 's usual if the Entry be before the Nisi prius to plead such a Plea at the Assises and if it be omitted the Advantage is lost but not so in case of Death By Death the Writ is actually abated Difference between Entry after Verdict and Death there being no time to plead it in Court but Entry must be pleaded puis darrein Continuance in Abatement only Sid. p. 238. Boys and Norcliff 1 Keb. 841 850. mesme Case Shall not abate by the Death of the Lessee Not abate by the Death of the Lessee Vid. 3 Keb. 772. Of pleading to the Jurisdiction Conisance of Plea how to be demanded and allowed and how pleaded This Plea was formerly allowed of and so is still in some Cases Now every Plea which goes to the Jurisdiction of the Court Regula for a Plea to the Jurisdiction of the Court. ought to be taken most strong against him that pleads it and to this purpose there is a pretty Case In Ejectment the Plaintiff declares of a Lease made at Haylsham Al' Jurisdict ' the Defendant pleads That Haylsham praedict â—ubi tenementa jacent is within the Cinque-Ports where the King 's Writ runs not Cinque-Ports and so he pleaded to the Jurisdiction of the Court The Plaintiff reply'd That the Town of Haylsham was within the County of Sussex absque hoc that it was within the Cinque-Ports The Defendant demurs Travorse because he ought to have traversed absque hoc quod Villa de Haylsham ubi tenementa jacent is within the Cinque-Port for the truth was it was part in the Cinque-Ports and part in the County of Sussex and the Land lies in the part which is in the Cinque-Ports but per Cur ' the
in Common by Baron and Feme By Joynt-tenants by a Corporation by Copyholder by Administrator CHAP. VII Where in the Declaration a Life must be averred and where it need not Of Delivery of Declarations at or after the Essoyn-day Declations when to be entred as of the same Term where the Copies need not to be paid for Declarations when amendable or not Of expressing the Vills where the Lands lie Of the Pernomen If it need to be of more Acres than the Plaintiff was ejected out of Of the Forms of the Declaration Vi Armis omitted Extr. tenet omitted The President of Declarations in B. C. in B. R. and in the Excheq The Indorsment of the Copy left with the Tenant and what the Tenant is to do thereupon The Rule of confessing Lease Entry and Ouster in C. B. and B. R. Affidavit in Ejectment to move for Judgment against the Casual Ejector CHAP. VIII What shall be a good Plea in Abatement in this Action Of Entry of the Plaintiff hanging the Writ Entry after Verdict and before the day in Bank After Imparlance no Pleading in Abatement and why Abatement because the Plaintiff shews not in which of the Vills the Land lies Ejectment against Baron and Feme Baron dies since the Nisi prius and before the day in Bank Of pleading to the Jurisdiction Conisance not allowable on Suggestion but it must be averred or pleaded How Prescription to the Cinque Ports to be made Ancient Demesne a good Plea in Ejectment and why It s a good Plea after Imparlance and why Of Plea of Ancient Demesne allowed the same Term and how Of Pleas puis darrein Continuance Entry puis darrein Continuance pleaded at the Assizes is resceivable and the Consequence of a Demurrer to this Plea Release of one of the Plaintiffs in a Writ of Error whom it shall bar Of Release puis darrein Continuance Plaintiff demurs to Plea of Entry puis darrein Continuance Quid Sequitur Accord and Satisfaction pleaded Aid prier and why the Defendant shall not have Aid pryer of the King aliter of a common Person A Writ not to proceed Rege inconsulto allowed Recovery and Execution in a former Action pleaded in Bar. Bar in one Ejectione Firme how a Bar in another CHAP. IX Of Challenge What is principal Challenge or not Of Elisors Of Venue VVhere the Parish and Vill shall be intended all one VVhere it shall not be de Corpore Comitatus VVhere the Venire fac ' is amendable Venire fac ' to the Coroners because the Sheriff was Cousen to one of the Defendants A Venire de Foresta Venire de Novo for Baron and Feme CHAP. X. XI Of Joyning Issue and Tryal In what Case no Verdict shall be Entred One Defendant Pleads Not guilty the other Demurs no Judgment upon the Demurrer till the Issue be tried Writ to Prohibit the Tryal Rege inconsulto Tryal in the Marches Consent to alter the Tryal New Tryal denied Of consent to a Tryal in a Foreign County Of Tryal in other County than where the Land lies Of Tryal by Mittimus in the County Palatine Who shall be good Witnesses in this Action or not Copy of a Deed. Deed cancelled Conditions Collateral Warrants found by a Jury What is good Evidence in Reference to a former Mortgage Where the probate of a Will is sufficient Evidence or not In Case of a Rectory what is good Evidence and what things the PaRson must prove Ancient Deeds Scirograph of a Fine Constant Enjoyment Evidence as to an Appropriation Deposition of Bankrupts Depositions in Chancery Transcript of a Record Inrolment of a Deed. Doomsday Book Of variance between the Declaration and the Evidence Of Demurrer to an Evidence ExEmplification of a Verdict Verdict Of a General Verdict Of Special Verdict Of Council subscribing the Points in Question Of finding Deeds in haec verba Eight Rules of Special Verdicts in Ejectment Of Estoppels found by the Jury and how they shall be binding What is a material variance between the Declaration and the Verdict Of Priority of Possession Where the Special conclusion of the Verdict shall aid the imperfections of it Where and in what Cases the Verdict makes the Declaration good Verdict Special taken according to intent Difference where the Verdict concludes Specially in one Point and where it concludes in General or between the Special conclusion of the Jury and their reference to the Court. Circumstances in a Special Verdict need not be precisely found Where the Judges are not bound by the Conclusion of the Jury Of certainty and uncertainty in Special Verdicts Of the finding Quoad residuum certainty or uncertainty in reference to Acres Parishes Vills and time of Verdicts being taken by Parcels How the Ejectment of a Manor to be brought Of a Verdict on other Lease or Date than is declared upon which shall be good or not Where a Verdict shall be good for part and void for the Residue The time of the Entry of the Plaintiffs Lessor where material Where the Jury ought to find an actual Ouster on him that had the right Prout lex postulat how to be understood Where and in what Cases Special Verdicts may be amended Where the Jury may conclude upon a Moiety or not Where a dying Seised or Possest must be found Where the commencement of an Estate Tail is to be found CHAP. XII Where the Defendant shall have Costs How the Plaintiff may aid himself by Release of Damages Executor not to pay Costs Lessor of the Plaintiff where to pay Costs Where Tenant in Possession liable to pay Costs or not Feme to pay Costs on the Death of her Husband Infant Lessor to pay Costs of the Writ of Enquiry the Entry If Writ of Error lies upon the Judgment before the Writ of Enquiry and why Writ of Enquiry how abated Costs for want of Entring Continuances Where the sole remedy for Costs in the first Tryal is to be had CHAP. XIII The Form of entring Judgments in this Action How the Entry is when part is found for the Plaintiff and part against him Qd. Def. sit quietus Quod Def. remaneat indefenss Against several Ejectors of form Of the Entry in case of the Plaintiff or Defendant One of the Plaintiffs died during a Curia advisare vult If the Death of one Defendant shall abate the Writ One Defendant dies after Issue joyned After Verdict and before Judgment the Plaintiff dies What Notice the Court takes of the Lessor of the Plaintiff Ejectment for the whole and a Title but for a Moiety how Judgment shall be In what Cases and for what Causes Judgment in Ejectments are Arrestable as Erreneous Judgment for the whole where it ought to be for a Moiety More Damages found than the Plaintiff Counts Judgment against Gardian and Infant Not severing intire Damages Against Baron and Feme quod capiantur Vi Armis omitted in the Declaration Plaintiff brings a Writ of Error and the Judgment is reversed
tryed in personal Actions it was totally denied but had it been by direction of Chancery the Court would do it but would in no wise grant this It was said by Ellesmere Lord Chancellor that until the 14. H. 7. it was never known that a Possession was removed by an Action of Ejectione Firme and said It was great pity it was allowed at this day for Law in England and therefore was of Opinion That an Action of Trespass Quare clausum fregit was much better to try the Title than an Ejectione Firme 1. Because no Possession was removed by the one 2. Because a Man may so plead in an Action of Trespass as that he may make the Plaintiff disclose his Title whereas by his Ejectione Firme it is no more than Non culp ' and then a Trial and so out of Possession without more business which he said was a Pick-pocket Action Ex M. S. 3 Leon p. 49. This Action is grounded on two Things videlicet the Lease and the Ejectment It was well observed in Eyres and Banister's Case Meor Rep. 418. That Ejectione Firme in former times was not thought to be an Action which concerned the Lessor but only the proper Interest of the Lessee but now of late times it is put in ure by the Experience of the Judges and all others that an Ejectione Firme is the Suit of the Lessor and the Lease made only to try his Title and to recover the Possession to him and the Suit is prosecuted at his Charge and his Lessee is but his Instrument to this purpose and all this to avoid the Charge and Delay of a Real Action and the Peril of being barred by a single Verdict And Partridge and Strainge's Case Plo. 78. was cited for the purpose if one being out of Possession above a year makes a Lease for years this is Maintenance within the Stat. 32 H. 8. and the Lessor and the Lessee shall lose the Value of the Land but if such a Person be at this day possest of such a Lease to try the Title and not by Contract that the Lessee shall hold the Land this is no Maintenance as hath been resolved in B. C. B. R. and Star-Chamber But for the better understanding the nature of this Action I shall shew wherein it differs from an Action of Trespass and a Quare Ejecit infra Terminum for tho' as was observed before it is in a sort a Trespass yet it differs from it in several Things In Trespass Damages are only to be recovered Diversity where the Damages are only recovered and where the Term. but in Ejectione Firme the Thing or Term it self is to be recovered as well as Damages And from hence another difference is observable in respect of Certainty If in Trespass the Plaintiff declares in one Acre and abutts it and the Jury find him guilty in dimidio Acrae praedict ' or in one Foot of it this is good tho' the Moiety is not bounded they have found the Trespass in the Moiety of the Acre bounded and this sufficeth â—n this Action where Damages are only to be recovered But if it were in Ejectione Firme it had been ill for it is not certain in what part the Plaintiff shall have his Habere fac ' possessionem And from this Diversity it is that if an Ejectione Firme be brought against two Defendants the one confesseth the Action and the other pleads in Bar Not guilty the Plaintiff cannot release his Suit as to one of the Defendants and proceed against the other but in Trespass in such Case he may because this Suit is only in point of Damages Yelv. 114. Winckworth and Man 2 Bulstr 53. Diversity Possession a good Title in Trespass but not in Ejectment and why Possession is a good Title for the Plaintiff in Trespass if the Defendant hath not a better to shew aliter in Ejectment for in Ejectione Firme if the Plaintiff hath not a Title according to his Declaration he cannot recover whether the Defendant hath Title or not as was Cotton's Case An Infant leaseth Land to C. at will who entred and ousted S. who thereupon brought an Ejectione Firme on a special Verdict no Title appeared to be in the Plaintiff and it was objected against the Lease at will because it was made by an Infant and no Rent reserved upon it nor the Lease made upon the Land and therefore the Lessee should be a Disseisor Per Cur ' be the Defendant a Disseisor or not it s not material here for if the Plaintiff hath not Title according to his Declaration he cannot recover and it is not like to Trespass where the very Possession without other Title is good 1 Leon 215. Cotton's Case Naked Colour is not sufficient in Ejectione Diversity colour not sufficient in Ejectione Firme and why Firme as it is in Trespass therefore if the Plaintiff make Title in Ejectment this Title of the Plaintiff ought of necessity to be answered viz. either by matter of Fact or in Law which confesseth and avoideth the Title or traverseth it For a naked Colour in this Action is not sufficient as it is in Assise or Trespass which comprehend not any Title or Conveyance in the Writ or Count as this Action does in both and in Godb. 159. in this Action a Man shall not give Colour because the Plaintiff shall be adjudged in by Title Dyer 366. Godb. 159. Piggot and Goddet's Case Allowance of Conisance of Franchise in Conisance of Trespass includes not Ejectments Trespass will not warrant an Ejectione Firme unless the Franchise had Conusance of all Pleas as was adjudged in the Case of the Bishop of Ely Ter. P. 18 Car. 2. B. R. In Clerks Case the Venire fac ' was ad faciend ' juratam in Placito Transgressionis where it should have been in Placito Transgressionis Ejectionis Firme and the Court would not amend it For though Ejectione Firme be but a Plea of Trespass in its Nature yet the Actions are several and therefore the Venire fac ' ought to be accordingly Cr. El. 622. Clerk's Case In Ejectment against two one pleads to Issue and the other demurs Issue first to be tried Ejectione Firme against two Defendants one pleads Not guilty the other pleads the Plaintiff replies and so Demurrer no Judgment shall be given on the Demurrer till the Issue be tried for in this Action the Possession of the Land is to be recovered and it may be for any thing that appeareth he who pleads the General Issue has Title to it but if it had been an Action of Trespass and the Plaintiff will release his Damages on the Issue joyned he shall have Judgment against the other 2 Leon. 199. Drake and Monday Trespass is deins Stat. 21 Jac. which names Trespass generally but Ejectment is not 1 Keb. 295. Power 's Case The Plaintiff declares in Trespass in one Acre and abutts it the Jury find him guilty in dimidio Acre praed
a Scire fac ' against his Heir who was Issue in Tail and the Sheriff retorns Scire feci and upon this Execution without any Plea pleaded by the Heir and the Heir being ousted by the Execution brought Ejectione Per Cur ' the Heir shall be bound by this Execution and he has no Remedy neither by Ejectment Writ of Error nor by Aud ' Querela nor by any other way but against the Sheriff if he have made a faux Retorn of the Scire fac ' Siderfin p. 55. Day and Guilford Rent granted with a Proviso Upon Entry of Grantee of a Rent and Retainer till Satisfaction for Arrear he may upon such Interest quousque maintain an Ejectment and so the Lord upon Scisure of a Copyhold till the Heir come to be admitted 1 Keb. 287. in Pateson's Case that if it be Arrear the Grantee may enter and retain until he be satisfied This Proviso shall enure to grant a certain Estate to the Grantee when he enters for Non-payment And tho' the Grantee by such Entry cannot gain a Freehold yet he had such an Interest as he may make a Lease of it and his Lessee may have an Ejectment for the Law does not give an Interest to any but it also gives a Remedy for it and if he have Remedy to hold such Possession he ought to have this Action which is the lowest Degree of gaining Possession So in the Countess of Cumberland's Case Anno 1659. of Copyholds there was a Custom That if such Tenant who claims Tenant Right does not pay his Fine the Lord may enter and retain the Land until he be satisfied and adjudged that his Lessee upon such Entry for Non-payment may maintain Ejectione Firme Siderfin p. 223. Jemot and Cowley 1 Roll. 784. 2 Keb. 20. mesme Case Cro. Jac. 511. Havergell and Hare Hill 13 Jac. B. C. Rot. 868. Brown and Hagger cited in Price and Vaughan's Case is full in the Point and Trin. 14 Car. 2. Roll. 2511. Eyer and Malin Ejectment upon a Lease of the Lord Byron special Verdict found Sir J. Byren seised in Fee by Indenture grants a Rent Charge for life to commence after the Death of the Grantor and if the Rent be Arrear that the Grantee may euter and take the Profits without Account till the Rent and Arrears shall be paid The Rent was Arrear and the Grantee enters and makes a Lease to the Plaintiff and Bridgman and the rest praeter Browne agreed for the Plaintiff It was said in the Case of Holmes and Bayly By Tenant at Will That Tenant at Will may make a Lease for years to try a Title of Land and so may a Copyholder Stiles Rep. 380. Ejectment is brought by Cesty que Trust. By Cesty que Trust Now if the Trustee of the Lease be Lessor in Ejectment he may disclaim in pays if he have not accepted the Trust which will avoid the Plaintiff's Title at the Tryal 2 Keb 794. Cheek and Lisle Vendee of the Commissioners on the Statute of Bankrupts of Lands by Deed Indented By a Vendee of the Commissioners of Bankrupts cannot maintain by his Lessee an Ejectione Firme before Inrollment of the Deed altho' it be inrolled after the Action brought And the Difference between this and the case of a common Bargain and Sale per Stat. 27 H. 8. c. 10. of Uses is For there the Estate passeth by the Contract and the Use is executed by the Statute then comes the Act of Inrolments of the same year and enacts That no Estate shall pass without Inrolment and this within Six Months But the Commissioners here have not any Estate but only a Power which ought to be executed by the Means prescribed by the Statute with the Circumstances there directed which is not only by Deed indented but inrolled also Sir Tho. Jones p. 196. Perry and Bowers Note Lessor of Tenant in Possession hath no Priviledge in Ejectment tho' he be a Lord of Parliament unless he be Tenant in Possession himself 1 Keb. 329. CHAP. III. Of Process in Ejectione Firme The Original What Mistakes in the Original are Error after a Verdict or not Of a vicious Original Of the want of an Original Of an Original taken out before the Cause of Action Where Amendment shall be by the Paper-Book Of Amendments of Originals Stat. 13 Car. 2. c. 11. Of Appearance Infant how to appear sue or defend The true Difference between Guardian and Prochein Amy. Of want of Pledges Of Bail Of the Stat. 13 Car. 2. c. 2. Of Bail or Error The Original is thus REX c. Vic Midd salutem Si A. â— fecerit te securum tunc pone p 〈…〉 pleg C. D. nuper de London 〈◊〉 Ita qd sit coram Iusticiariis nostr apud 〈◊〉 tali die ad respondend W. â— â—e Plito quare vi armis unum Messâ—â—g decem Aeras Terre tres Aeras Pasture cum ê‘tinen in D. in Comit tuo que S. W. vid eid W. dimisit ad terminum qui nondum preteriit intravit ipsum a Firma sua ejecit alia enormia ei intulit ad grave damnum ipsius W. contra pacem nostram Dom Regis nunc c. T. c. On the Retorn in B. R. quindena Pasche ubicunque Writ Process In Ejectment upon a Demise by the Lord L. who was no Peer yet upon Non Culp ' good he being the same Person that did demise Allen 58. Bernard's Case So you see the Original Writ in C. B. in Ejectment is an Attachment or a Pone per vadios salvos plegios c. and Summonitus in Ejectment was held to be an Error In Ejectione Firme brought by Original Writ out of Chancery Summonit for Attachment is Error after Verdict the Record upon the Issue-Roll was entred in this manner ss Simo Edulph nuper de C. summonit fuit ad respond Tho. R. de plito quare vi armis c. And after Verdict pro Quer ' it was moved That this was a Vicious Original and not aided by any of the Statutes of Jeofail's for it appears by the Entry of it that the Original was a Summons where it ought to have been an Attachment which the Court granted but upon search there was no Original filed Aliter if there be no Original and then per Cur ' seeing there is no Original filed it shall be intended after Verdict that once there was a good Original which is now lost and that the Plaintiff's Clerk had mistaken in the Recital of it which after Verdict is not material Reg. Orig. 227. b. Saunders Rep. 1. p. 317. Redman and. Edolph Sider 423. mesme Case 2 Keb. 544. mesme Case So in Jennings and Downe's Case Error was assigned because that it appeared by the Record that the Declaration was before the Plaintiff had any Cause of Action but the Council of the other side said There is a wrong Original certified and prayed to have a
of the Land by the Defendant this was adjudged a good Entry for the Land in both the Villages per totam Curiam So of Lands in one County Palmer 402. Argoll and Cheney The Corporation of Mercers were seised of the Lands in Question By Corporation in the several Possessions of Two Men and being so seised made a Deed of Lease to the Plaintiff and a Letter of Attorney to deliver the Deed and the Possession The Attorney entred upon the Possession of one of the Men and there delivers the Deed and after enters in the Possession of the other and there doth deliver the Deed the Question was If it were good for the Land for which the second Delivery was because one Deed cannot have two Deliveries but the Court held it shall be intended the first Delivery was good for all and it shall not be intended but that the two Men had Possession only as Tenants at Will to the Corporation and then the Delivery of the Lease in one place is good for all and it shall not be intended they had an Estate for Years or Life except the contrary be shewed Baron and Feme joyn in a Lease by Indenture to B. By Baron and Feme rendring Rent for Years and make a Letter of Attorney to seal and deliver the Lease upon the Land which is done B. brought Ejectment and declares of a Demise made by the Baron and Feme and upon evidence to the Jury it was ruled per Cur ' That the Lease will not maintain the Declaration for a Feme covert cannot make a Letter of Attorney to deliver a Lease of her Land but the Warrant of Attorney is meerly void so that this only is a Lease of the Husband which is not maintained by the Declaration But Hopkins's Case in Cro. Car. 165. is against this where the Plaintiff declared of a Lease made by Baron and Feme On Not guilty it appeared on the Evidence that the Lease was sealed and subscribed by them both and a Letter of Attorney made by them to deliver it upon the Land Per Cur ' it 's a good Letter of Attorney by them both and the Lease well delivered and it is a Lease of them both during the Husband's Life Yelv. Wilson and Rich. 2 Brownl 248. Plomer's Case Cro. Car. 165. Hopkin's Case 2 Leon. 200. CHAP. V. Of the Rule of confessing Lease Entry and Ouster and Rules of Court relating thereunto Of Refusal to confess Lease Entry and Ouster and the Consequence Of how much the Defendant shall confess Lease Entry and Ouster In what Cases there must be an actual Entry and where it is supplied by confessing of Lease Entry and Ouster Rules concerning ones being made Defendant and of altering the Plaintiff and of the Ejectment-Lease HOW necessary the Knowledge of this Practice is to one who would manage his Client's Cause with Discretion and Success is sufficiently apparent and needs no further Recommendation It must be observed as was adjudged in the Mayor of Bristol's Case that there Ejectment in Inferiour Courts or in any other Inferiour Court they cannot make Rules to confess Lease Entry and Ouster as in the Courts of Westminster but they must actually seal the Lease as at Common Law And so it was in Sherman and Cook 's Case where it was moved That the Defendant who by Habeas Corpus had removed an Ejectment out of the Sheriff's Court might consent to a Rule of Court that he should confess Lease Entry and Ouster but the Court refused the Defendant not being bound by the Rule below because they cannot proceed by way of delivering Declarations to the Tenants in Possession but as at Common Law by actual Lease sealed Tryals below how And by Hyde all the Tryals below are tried in the casual Ejector's Name by him that is Tenant in Possession to avoid Charge P. 16 Car. 2. B. R. M. 16 Car. 2. B. R. Where the Freeholds are several Where the Freeholds are several the Plaintiff must sever his Action and one Defendant gives a Note of what is in his Possession the Plaintiff must sever his Action else the Defendant might lose his Costs for which on severance he would have legal Remedy And here is no Inconvenience because the Plaintiff may take Judgment against his own Ejector for the rest and the Defendant shall not confess Lease The Defendant not to confess Lease Entry and Ouster for any more than is in his own Possession Entry and Ouster of all but only of so much as is in his own Possession which is the only way to save his Costs And Medlicot's Case was where the Plaintiff's Title is one by the Demise of A. and the Defendant's several the Plaintiff offered to secure Costs severally to all but he was ordered by the Court to deliver several Declarations that none may defend for more than is in his own Possession else the Plaintiff might clap in an Acre of his own to save Costs and Agreements of Parties are no Guide to Rules but would make the Court but Arbitrary and this Rule is no hindrance of Tryals at Bar where many Defendants have but the same Title Tr. 21 Car. 2. B. R. Medlicot's Case In Ejectment the Ouster was confessed of a third part of a fourth part of a fifth part in five parts to be divided which by Hide is very inconvenient The Inconvenience of the new Course of leaving Declarations and crept in since the new Rule of leaving Declarations the Lands being in several places distinct from each other and may be held by several Titles which could never be had the old Course of actual Ejectment continued but on suggestion that the Title was but one and one Plaintiff and one Defendant it was admitted M. 15 Car. 2. B. R. Cole and Skinner In Ejectment where there are divers Defendants who are to confess Lease Entry and Ouster if one doth not appear at the Tryal the Plaintiff cannot proceed against the rest but must be nonsuited 1 Ventr In Ejectment the Plaintiff shewed Copy of four Acres In what case the Court will give leave to retract the general Confession of Lease Entry and Ouster to save Costs the Title being on Will or no Will but not being able to prove where particularly the Court gave leave to the Defendant that claimed by the Will to retract the general Confession of Lease Entry and Ouster as to this and to have Judgment against the casual Ejector M. 27 Car. B. R. Hide and Preston If the Defendant refuse to confess Lease Entry and Ouster the Rules are thus Where the Defendant was by Rule of Court at the Tryal which was to be at the Bar to appear and confess Lease Of the Defendant's Refusal to confess Lease Entry and Ouster Entry and Ouster and to stand upon the Title only yet at the Tryal he would not appear upon which the Plaintiff was Non-suit and yet Judgment was for the Plaintiff
upon the Rule and he was ordered to pay the Jury And in Davies's Case 13 Car. 2. B. R. H. desired to be made Defendant confessing Lease Entry and Ouster and at the Tryal resolved so to do but the Court denied that he should pay Costs because thereby the Plaintiff hath recovered and so hath the Fruit of his Suit To pay no Costs But in Williams and Hall's Case on Tryal at Bar the Defendants refused to confess Lease Entry and Ouster per quod the Plaintiff was Non-suited and it was moved that in regard the Default was the Defendant's that the Plaintiff might have Attachment against the Defendant according to the Course of the Common Bench which the Court granted So upon a Judgment a-against his own Ejector in default of confessing Lease Entry and Ouster without a special Rule no Costs shall be paid by H. the Tenant in Possession that made this Default because the Plaintiff hath Benefit of his Suit viz. Judgment against the Ejector whereby he may recover Possession Stiles p. 425. 13 Car. 2 B. R. 15 Car. 2. B. R. 1 Keb. 242. The Form of the Rule of Confessing Lease Entry and Ouster in B. sR. B. C. Vide infra Of the Effect of an Entry according to the Rule and where it will supply an actual Ouster and where not Ejectment was brought by Devisee of a Rent Where confessing Lease Entry and Ouster will supply an actual Ouster or not on Condition That if a Legacy be not paid yearly c. that it shall be lawful for the Devisee to enter and after the Demand made of the Rent this Action was brought and the Lease Entry and Ouster was confess'd Per Windham this is only of an Entry sufficient to make the Lease that entitles to the Action not of an Entry that gives Title to the Land and for Non-proving of an actual Entry the Plaintiff was non-suited But otherwise in case of a Lease rendring Rent to be void by Re-entry by Non-payment In the Ejectment there was a Rule for confessing Lease Entry and Ouster and the Question was Whether this be sufficient without Proof of actual Entry Per Hales C. J. the Confession is sufficient else in every Case of Disseisin c. the Entry must be proved but in Assignment of Assignee of Lessee such Confession doth not avoid the Assignment but that must be proved and this is as actual Lease on the Land wich cannot be without Entry And so is 1 Ventr 248. Anonym The Lessor of the Plaintiff had a Title to enter for a Condition broken for Non-payment of Rent Lease Entry and Ouster was confessed and the Court was moved that in regard that the Lessor having such a special Title and no Estate till Entry whether such an Entry shall be supplied by the general Confession or that there should be an actual Entry and it was held it should be supplied by the general Confession But by Hales If A. lets to B. and B. to C. to try the Title the confessing of Lease Entry and Ouster extends only to the Lease made to C. and not to that made to B. P. 26 Car. 2. B. R. Abbot and Sorrel's Case M. 25 Car. 2. B. R. Wither and Gibson 1 Ventr 248. Anonym In Okely and Norton's Case M. 22 Car. 2. B. R. Judgment was prayed for not confessing Lease Entry and actual Ouster by one Coparcener against another Per Cur ' on the former Rule to confess Lease Entry and Ouster generally actual Ouster need not be confessed and Judgment was against the casual Ejector The Rule to confess Lease-entry and Ouster does not extend to confess actual Entry upon a Lease which is the Title The Rule to confess Lease Entry and Ouster does not extend to confess actual Entry upon a Lease which is the Title but the Court said An Entry shall be intended until the contrary be proved of the other side The Case was upon Evidence to a Jury at the Bar. The Plaintiff's Title was a Lease for Five thousand Years which Lease was sealed and delivered at London and the Council for the Defendant would put the Plaintiff to prove an actual Entry by force of this Lease for it was agreed That the Rule to confess Lease Entry and Ouster doth not extend to it but per Cur ' it shall be intended that he entred until the contrary be proved on the other side M. 22 Car. 2. Okely and Norton Sid. p. 223. Langhorn and Merry Upon a Tryal in Ejectment the Title of the Plaintiff's Lessor appeared to be by a Remainder limited to him for life upon divers other Estates and that there was a Fine and Proclamation but he within the Five years after his Title accrewed sent two Persons to deliver Declarations upon the Land as the usual Course was upon Ejectments brought Per Cur ' this is no Entry or Claim to avoid the Fine he having given no express Authority to that purpose and the Confession of Lease Entry and Ouster shall not prejudice him in this respect M. 25 Car. B. R. Clark and Phillips As for ones being made Defendant the Rules are thus He that desireth to be made Defendant in Ejectment for as much as is in his Possession The Defendant to give a Note of what is in his Possession or of his Under-Tenant must give a Note to the Attorney of the Plaintiff in Writing of what the Particulars are of which he is in Possession or his Under-Tenant to prevent Delay at the Assizes T. 15 Car. 2. so ordered By Pinsent in B. C. If one move that the Title of the Land do belong to him and that the Plaintiff hath made an Ejector of his own and therefore prays that giving Security to the Ejector to save him harmless Difference between the Course in the King's Bench and Common Pleas. he may defend the Title the Court will grant it but will not compell the Plaintiff to confess Lease Entry and Ouster except he will be Ejector himself But it is not so in the Court of King's Bench for there in both Cases they will compel him him to confess Lease Entry and Guster Stiles Rep. 368. The Course of the Court is He that is made Defendant in Ejectment not to be charged with Actions by the by That one that cometh in to be made Defendant in Ejectment upon his Prayer confessing Lease Entry and Ouster shall not be charged with any Actions by the by because he comes in without Process or Arrest only to defend the Title In Ejectment after Declaration and before Plea Motions to tâ—r the Plaintiff and why he which had the Title moved the Court for to alter the Plaintiff because he was to give evidence and the Court agreed to it that he should alter the Plaintiff paying Costs and giving Security for new Costs and they may alter the Plaintiff in this Action upon the same Reason that they may alter the Defendant which is usually done 1
to bring Ejectment de unâ Capellâ De Capella but it ought to be by the Name of a Messuage or House 11 Rep. 25. b. Ejectment de septem Messuagiis sive Tenementis De septem Messuagiis sive Tenementis it 's ill after a Verdict for the uncertainty Cro. El. 146. Ejectment de uno Messuagio sive tenemento vocat ' De uno Messuagio sive Tenemento vocat ' the Black Swan is good per Twisden for the last words ascertain it Had the Verdict been general for the Plaintiff for the Messuages and Non Culp ' for the Tenements it had been good And in this case the Plaintiff cannot aid himself by releasing of part as it might be had there been Lands in the Declaration De Messuagio sive Tenemento is ill after a Verdict but if the Judge will allow the Jury to find for the Plaintiff for the Messuage and for the residue for the Defendant it had been good but the Plaintiff may not aid himself by Release Siderf 295. Burbury and Yeoman Ejectione Firme lies not de Coquina De Coquina but it lies by Bill in B. R. tho' Coke said it lies by Writ too and the Law is all one 1 Roll. Rep. 55. It was adjudged in Stiles Rep. 215. That Ejectment doth lie of a Cottage De Cotagio because the Description of a thing by that Name is sufficient and certain enough to shew the Sheriff of what to deliver the Possession but a Recovery lies not of a Cottage Stiles p. 258. Hammond and Ireland Cro. El. 818. Hill and Gibs Ejectione Firme lies de Pomario De Pomario and de Domo for they are certain enough to give Possession tho' a Precipe lies not of it and many things are recovered in Ejectment which are not named in the Register as Hopyard c. Cro. Jac. 654. Royston and Eccleston Palmer 337. mesme Case Cro. El. p. 854. Wright and Wheatly Ejectione Firme de quatuor molendinis De molendinis without expressing whether they are Windmills or Water-mills yet good Mod. Rep. 9. Fitz Gerard's Case In Palmer and Humphrey's Case it was adjudged De pcciaterrae That Ejectment lies de pecia terrae but it was after reversed in the Exchequer-Chamber Cro. El. 422. Palmer and Humphrys And a Declaration de una pecia terrae continen ' ducentas unam Acram sive plus sive minus jacent ' inter terras c. this was adjudged ill after a Verdict and Nil cap ' per Billam entred So continen ' dimidiam acram terrae vocat ' It was said in Hancock and Pryn ' s Case Ejectment of a Close of Land or de pecia terrae containing so many Acres had been good W. Jones p. 400. Savil 176. Hardr. 57. Ejectione Firme cannot be of a Manor De Manerio for that there cannot be an Ejectment of the Services but if they express further a Quantity of Acres it is sufficient and it lies of a Manor or the Moiety of a Manor if the Attornment of Tenants can be proved and there is none that brings Ejectment of a Manor but they also add the Acres that contain it to the end that if they prove it not a Manor they may recover according to the Acres Vide infra Hetley 80. Norris and Isham And p. 146. Warden's Case It was doubted by Rolls and the Court De Crofto if an Ejectment lies de Crofto therefore the Plaintiff moved for a special Judgment for the rest of the Land contained in the Declaration and released the Damages as to the Croft and had it but afterwards in Meeres and French's Case it was agreed That Ejectione Firme lies of a Croft and Dower and Assise will lie of a Croft because it is put in View of the Recognitors tho' a Formedon nor Praecipe will lie of it but 2 Car. p. Rot. 301. Holmes and Wingreve de Crofto is ill in Ejectment tho' good in Assise Rolls Rep. p. 30. Ejectment de uno Clauso De uno Clauso without saying how many Acres is ill A Man makes a Lease of a Garden containing Three Roods of Land De tribus Roods of Land Lessee is ousted and brings Ejectment the Justices differed in Opinion whether it were good or not but all agreed the best order of Pleading to be to declare That he was ejected of a Garden containing Three Roods of Land Godb. p. 6. Parcella terrae does not comprehend a Garden in Ejectione Firme Parcella tarrae Moor 702. Palm 45. Ejectment de uno Clauso continen ' tres Acras per estimationem ill but Indictment quare vi armis in Clausum continen ' tres Acras per Estimationem fregit is good Debt or Demise of Seven Acres per estimat ' is ill Dormer's Case Brownl p. 142. Tho' in Co. 11 Rep. 55. Savill's Case That an Ejectione Firme lies not of a Close yet the contrary had been since adjudged between Hykes and Sparrow Tr. 15 Jac. Rot. 774. Cr. Car. 555. Siderf 229. Declarat ' is Quod cum dimisit to him unum Messuagium unum Clausum vocat ' Dovecoat-Close continen ' tres Acras eidem mâ—ssuagio spectan ' per Cur ' it does not lie of a Cloâ—e tho' coupled with other Words because the Quality of the Soil is not alledged as to say Land Meadow Marsh c. And by Coke if he had bound the Land without shewing the Quality it had not been good tho' it was objected that by all the Words put together here is sufficient certainty to put the Party in Possession and yet some Reports are to the contrary Ejectione Firme of a Close called White-Close was said to be held good in Ellis and Floyd's Case cited in Madonell's Case But in Ireland Ejectment was of a Close called the Upper Kibwell and of another called the Lower Kibwell containing Three Acres of Land was held good Regula And it is a sure Rule That the certainty of the Land ought to be described and the Quality c. And therefore the Case of Jones and Hoell seems not to be Law which was Ejectione Firme of Seven Closes one called Green Mead and so gave to the others several Names and the Verdict was for the Plaintiff and by the Court there it 's well enough For said they when a Name is given to every Close tho' the Contents of Acres are not mentioned viz. so many of Land so many of Pasture i'ts sufficient and aided by the Statute of Jeofayls 11 Rep. 55. Savill's Case 1 Roll. Rep. 55. mesme Case Cro. Jac. 435. Wilks and Sparrow 2 Roll. Rep. 1. 608 189. Macdonel's Case Cro. El. 235. Jones and Hoell In Martin and Nichol's Case Error was assigned It 's not distinguished how much of Pasture and how much of Meadow ergo ill because the Declaration was of a Messuage and Forty Acres of Land Meadow and Pasture thereunto appertaining and it was not distinguished how
per Cur. ' when the Verdict has found him guilty upon the Declaration and the Ejectment is alledged according to the Declaration it may well be intended that the Indenture bore date and was sealed and delivered the same day mentioned in the Declaration of the Lease tho' it was objected That neither the day of the Date nor of the Sealing and Delivery of the Indenture are mentioned and so the Declaration uncertain but Judgment pro Querente Cro. Jac. 646. Heaton and Hurlestone Now in Wakely and Warren's Case Virtute cujus praetextu cujus he entred the difference between them tho' the Plaintiff does not shew in his Declaration when he entred either after or before the day on which the Lease commenced yet it 's good enough because he saith the Lease to him made was to commence at a day to come virtute cujus he entred and was possest until c. aliter had it been if he had said praetextu cujus 2 Rolls Rep. 466. Wakely and Warren Now the Judges favour Declarations in Ejectment as may be seen 1 Ventr 136. The Plaintiff declares in Ejectment That J. S. demised to him per quoddam Scriptum Obligatorium c. Habend ' à die datus Indenturae praedictae per Cur ' the Writing shall be intended an Indenture tho' it be called Scriptum Obligatortum and every Deed obligeth but if it shall not be intended Indented then the Lease shall begin presently as if it had been made from the 4th of September But a Declaration was of a Lease Hab. à die datus Indenturae praedictae and does not speak of any Indenture before and the Declaration was adjudged naught But Ejectione Firme of a Lease made the 20th of August Hab. from Michaelmas then last past ante datum hujus Indenturae and neither shewed the Indenture nor the Date thereof and per Cur ' it 's well enough The Addition ante â—â—tum Indenturae shall be void the other being good Et postea how expounded and the beginning of the Lease appearing certain enough Hetley 63. Brady and Johnson Cro. El. 606. Darrel and Middleton Ejectione Firme of a Lease made the 21st of Octob. 4 Jac. quod postea scilicet eodem 21 die Octob. Anno tertio supradicto he ejected him And the Addition of an Year which was not mentioned before and which is repugnant to that day which was mentioned is idle and shall be taken for null postea the same day shall be good enough Cro. Jac. 154. Brigate and Short Error was assigned Ejectment of the 4th part of an House in 4 parts to be divided and declares de tenementis praedictis for that the Plaintiff did Count of the Lease of the fourth part of an House in N. in four parts to be divided by force of which he entred in tenementum praedictum and was inde possessionat ' till the Desendant did eject him de tenementis praedictis whereas he ought to suppose his Entry into the fourth part and the Ejectment of the fourth part sed non alloc ' for the Entry and Ejectment supposed de tenementis praedictis shall not be intended of the intire Tenement but of the fourth part of the House according to his Declaration Cr. El. 286. Rawson and Mainard Ejectment for Tythes not saying by Deed Judgment was reversed 2 Keb. 376. Angell and Rolf. The Declaration was of several Messuages in the several Parishes of St. Michael St James St. Peter and St. Paul and that part of the Premisses lay in the Parishes of St. Peter and St. Paul but that there is no Parish called the Parish of St. Peter nor none called the Parish of St. Paul per Cur ' the Copulation Et shall be referred to that which is real and hath existence ut res magis valeat to make them both one Parish and the words several Parishes is supplied by the other Parishes aforenamed Hardr. 336. Ingleton and Wakeman By Coheirs or Coparceners Declaration by Coparceners Quod demiserunt Quod dimiserunt is good therefore Molliner and Robinson's Case Moor 682. where the Lease was made by two Coparceners and it was declared Quod dimiserunt To which it was excepted that the Lease is the several Lease of each of them for his Moiety which was there ruled a good Exception is not Law 2 Brownl 207. Cro. El. 615. 2 Keb. 192. Moor 682. And now Ejectments in such Cases are by the Lessee of a Lessee of the whole by many Coheirs Coheirs declare by the Lessee of a Lessee and why which is by reason of the Uncertainty of the part claimed by the Lessors and per Cur ' a Lease of all parts warrants the Lease of all 2 Keb. 700. By Tenants in Common If Two Tenants in Common joyn in a Lease for years to bring Ejectment and Count quod dimisissent it 's naught for it is a several Lease of their Moieties and they must declare Quod cum one of them dimised the one Moiety and the other the other Moiety 1 Brownl 13. Cr. Jac. 166. Mantley's Case If one Tenant in Common take the whole Profits the other has no Remedy by Law against him for the taking the whole Profits is no Ejectment but if he drive away the Cattel of the other Tenant in Common off the Land or not suffer him to enter and occupy the Land this is an Expulsion and he may have Ejectione Firme for the one Moiety and recover Damages for the Entry but not for the mean Profits 1 Instit p. 199. b. By Baron and Feme The Plaintiff declares of a Lease made to him by Baron and Feme generally and does not alledge it to be by Deed it was a great Question in our Books whether this be good or not but now it 's ruled to be good by many Precedents 2 Rep. 61. Wiscot's Case By Joyntenants C. and R. and W. Daughter to R. are Joyntenants for years W. lets her part to C. and C. and R. joyn in this Lease of the entire Land to the Plaintiff for three years Popham and Fenner held That this Lease well warrants the Declaration for upon the matter they both let the entire and upon this general Count it is good Yelverton and Williams è contra because the Count supposeth they both let the entire as Joyntenants for so it is intended by the general Count which appears to be false for they two let two Parts joyntly and the one of them having a third Part as Tenant in Common Two as Joynt-tenants and one as Tenant in Common demise the Commons in such Cases how to declare le ts that only and so the Declation ought to have shewed the Truth and the Special Matter And because it is difficult they use in such Case to make a Lease and the Lessee to make a second Lease and the second Lessee to declare generally and so all the matter shall come in Evidence Fleming before whom it was tryed by Nisi
prius over-ruled it that this Declaration was well maintained by the Lease and the Jury gave a Verdict according to his Opinion Cro. Jac. p. 83. Jordan and Steere Upon a Lease by Tenant for life and him in Remainder A. Tenant for life Remainder to B. in fee they both by Indenture joyn in a Lease to the Plaintiff Per Cur ' this is the Lease of A. during his Life the Confirmation of B. and after the Death of A. it is the Lease of B. and the Confirmation of A. And because the Plaintiff in Ejectment had counted of a joynt-Lease by A. Verdict and B. it was adjudged against him 6 Rep. 15. Treport's Case So is the Case in Popham p. 57. upon a Demise by Dorothy Pool and Robert Smith it was thus on a Special Verdict Dorothy was Tenant for Life Remainder to Smith in Fee and they being so seised made the Lease in the Declaration Per Cur ' the Lease found per the Verdict doth not warrant the Lease alledged in the Declaration for during Dorothy's Life it 's her demise and not the demise of Smith but as his Confirmation for that time for he had nothing to do to meddle with the Land during the Life of Dorothy and after her death it shall be said to be the demise of Smith and not before Poph. 57. King and Berry By a Corporation The Plaintiff declares upon a Lease to him made by the President Fellows and Scholars of St. John's Colledge Oxon. and in the Conclusion he doth not say hic in Curia prolat ' Per Williams it is not good The Ejectment-Lease being made by a Corporation they sealed the Lease and delivered it by their Attorney having a Letter of Attorney from them to deliver the same they cannot do this in any other manner than by their Attorney 1 Bulstr. 119. Lord Norris's Case Hill 36 El. Carter and Cromwel in Ejectione Firme the Plaintiff counts per Lease made by the Warden of All-souls Colledge in Oxon. And Exception was taken because the name of Baptism of the Warden was omitted but adjudged there need not the difference is where a Corporation is sole Person as Bishop there may be his Name aliter aggregate Dyer 86. Marg. Ejectment was brought on a Demise of a Corporation not saying by Deed per Cur ' Judgment shall not be arrested for this on Judgment by cognovit Actionem at the Assises but it shall be intended after this as well as after a Verdict Upon a Lease by Commissioners of Bankrupt Commissioners of Bankrupt had assigned the Land in Question to the Lessor of the Plaintiff which Indenture was afterwards inrolled but the Declaration was of a Demise made after the Indenture and before the Inrolment and whether that Demise were sufficient to intitle the Lessor of the Plaintiff was the Question in Perry and Bowe 's Case Per Cur ' it is not sufficient Vide le case 2 Ventr 360. Perry and Bower By Copyholder If a Lease be found made by a Guardian or Copyholder such a Lease will maintain the Declaration tho' their Leases are void against the Lord and Infant Hardr. 330. Wheeler's Case Vide supra Tit. Who shall have Ejectione Firme By Administrator He ought to shew how the Archbishop granted it either as Ordinary or by his Prerogative and therefore Exception was taken to a Declaration in Ejectment because the Plaintiff conveyed his Interest by an Administrator of all the Goods of the Lessee in Sussex and Kent but shews not how the Archbishop granted it either as Ordinary or by his Prerogative Presidents not to be changed and this was held by the Court to be a material Exception But because all the Presidents in B. R. and B. C. were so in general without shewing how and because they would not change Presidents they disallowed the Exception Cro. El. p. 6. Dorrel and Collins In Gillam and Lovelace's Case it was moved in Arrest of Judgment That the Declaration brought by Administratrix was not good because the granting forth Letters of Administration was in this manner viz. Administratio commissa fuit querenti per William Lewin vicarium generalem in spiritualibus Episc Rot. without averring that at the time of the granting Letters of Administration Vicar-General the Bishop was in remotis agendis for a Bishop present in England cannot have Vicarium but per Cur ' the Vicar-General in spiritualibus amounts to a Chancellor for in the Truth a Chancellor is Vicar-General to the Bishop 2. The Declaration is not Episcop Roff. loci illius ordinarii but per Cur. all the Presidents are so and in a Declaration such Allegation needs not but by way of Barr it is necessary 3. The Plaintiff declares of Ejectment and also quod bona catalla ibid. invent cepit and in the Verdict the Damages for the Ejectment and Goods are entirely taxed Quaere de hoc 1 Leon. p. 312. Gilham and Lovelace Ejectione Firme was brought of a Lease of Tythes and shews not that it was by Deed and ruled to be ill because Tythes cannot pass without Deed Cr. Jac. 613. Swadling and Peers CHAP. VII Where in the Declaration a Life must be averred and where it need not Of Delivery of Declarations at or after the Essoyne-day Declurations when to be entred as of the same Term where the Copies need not be paid for Declarations when amendable or not Of expressing the Vills where the Lands lie Of the Pernomen Declaration need not be of more Acres than he was ejected out of Of the Forms of the Declaration Vi Armis omitted Extr. tenet omitted The President of Declarations in C. B. in B. R. in Scacario The Indorsement on the Copy to be left with the Tenant and what the Tenant is to do thereupon The Rule for confessing Lease Entry and Ouster in B. C. and in B. R. IF one do declare upon a Lease in Ejectione Firme and that by Virtue of that Lease he was in possession of the Lands thereby let to him until that he was ejected by the Defendant it is supposed that the Lessor who made the Lease to him was alive at the time of the Action brought Pract. Reg. 110. The Plaintiff in Ejectment declared of a Lease for three years if the Wife of the Plaintiff shall so long live and does not shew that the Wife is yet in Life yet per Cur ' this being after a Verdict is made good by the Stat. 21 Jac. of Amendments after Examination by the Sheriff And in Arundel's Case in Ejectment the Plaintiff declares that the Lady Morley being only Tenant for life made a Lease to him for three years if she should so long live virtute cujus intravit fuit possessionat ' until the Defendant entred upon him illum à firma sua praedicta termino suo nondum finito extratenet c. and he did not averr the Life of the Lady Morley But per Cur ' this amounts to an Averment for he
saith his Term is not yet ended which implies she is alive and the years not expired and this was after a Verdict But had it been demurred to it had been more ambiguous So Dyer 304. in Ejectione Firme on a Lease his Supposition that the person adhuc seisitus existit implies his Life Siderf p. 61. Palmer Rep. 267 268. Arundel and Mead. Cro. Jac. mesme case 2 Browl. 165. It was the Opinion of the Court in Cro. El. p. 18. Higgins and Grant's Case That if in Ejectment one declares of a Lease by a Parson he ought to averr his Life for by his death his Lease is void but it 's now otherwise 2 Bulstr 79. Cr. El. 18. Higgins and Grant Of the Delivery of Declarations Filing and Entry The Court A new Declaration delivered on the Essoyn-say in Car. 2. Snow and Cooley's Case upon Motion ordered That a new Declaration delivered on the Essoyn-day should be sufficient the old one being delivered before the Lessee dying and the Name was changed there being sufficient Notice and this being the Act of God shall not prejudice 1 Keb. 755. If the Declaration in Ejectment be delivered after the Essoyn-day The Declaration is delivered after the Essoyn-day and the Consequence it is but entred of that Term and not of the Term before and the Plaintiff in such case cannot have Judgment the same Term but if he doth not move the following Term to have Judgment especially if any Assises intervene he cannot have it without new notice left at the House of the Defendant and the Default made at first 1 Keb. 721. If the Declaration in Ejectment be of Michaelmas-Term What day the Bill was filed is examinable whether after the day of the Lease tho' it 's the same Term. which relates to the first day of the Term yet it 's a matter of Evidence and examinable what day the Bill was filed and if it was after the day of the Lease all is well On a special Verdict it was moved for the Defendant That the Declaration was in Michaelmas-Term 2 Jac. 2. and the Demise is laid to be the 30th of October 2 Jac. 2. and so after the Term began Note the Declaration cited an Original and an Original was produced Teste 2. Nov. which was after the Demise and the Prothonotaries informed the Court That this was frequently allowed and that no Memorandums of the Originals bearing Teste within the Term was used to be made upon the Record Sid. p. 432. Prodger's Case 2 Ventr Tonstale and Broad It is the Course of the Court in Ejectment if the * If the Owner prays to be made Defendant the Declaration to be entred as of the same Term but no new Imparlance Owner of the Land comes in and prays to be Defendant the Declaration shall be entred as of this Term altho' it were of the last Term against the casual Ejector but yet being by favour of the Court admitted he shall have no new Imparlance besides that which the casual Ejector had And by Hide there is difference between the Tenant in Possession who is Defendant ex debito on his Prayer contra of J. S. who is only concerned in Title 1 Keb. 706. Roch and Plumpton If the Declaration filed be paid for Where Copies of the Declaration need not be paid for they need not pay for the Copies and so a Trial at Bar shall not be hindred for want of payment of the Copies 2 Keb. 805. I find a Rule of Court to change the year thus ss Mich. 13 Car. Ordinat est per Curiam nono die Octob qd quer ' narrationem suam in intratione inter partes de Termino St. Trin ult intxat in Anno dimissionis emendavit Et ubi per misprisionem Clerici allegavit dimissionem fieri duodecimo die Aprilis Anno undecimo Caroli fieri debuit Anno duodeeimo quer ' solveret Def. miss per Magistrâ— Gulston taxand pro emendatione illa ex motione Magistri Boon Lessee for three years makes a Lease for five years in Ejectment to try the Title Lease not warranted by the Declaration and the Jury on special Verdict doubt whether the Defendant be guilty for 3 or 5 years Per Cur ' the Declaration is ill and the Plaintiff can have no Judgment Per Hale the Lease is good only for three years Declaration and the Defendant shall be guilty for no more else the Plaintiff would recover Terminum praedict ' which is five years but no Judgment can be for three years being not warranted by the Declaration Tr. 27 Car. 2. B. R. Rowe and Williamson Mr. Levett's Case of the Inner-Temple Sir Roger Puleston Kt. Plaintiff Sir Peter Warburton and others Defendants Ejectment upon the Demise of John Levet and his Wife wherein the Plaintiff declares that John Levett and Margaret his Wife the 10th of April 1697. demised to the Plaintiff Habend from the 25th day of March then last past for five years THIS was tried at the Bar Argument and a Verdict for the Plaintiff and the Defendants have moved in Arrest of Judgment Argued at the King's Bench before Lord C. J. Holt c. for that the Demise is laid the 10th of Apr. 1697. which is not yet come whereas it should be 1696. which the Plaintiff hath moved to amend and the same ought to be amended c. for these Reasons wherein I shall only apply my self to the Statute of the 16 and 17 of King Charles the Second Cap. 8. which I humbly conceive hath not been sufficiently spoken to in this matter which saith That no Judgments shall be staid or reversed after Verdict for any Mistake in the Christian Name Day Month or Year by the Clerk where the right Name Sirname Day Month or Year in any Writ Roll Plaint or Record preceeding or in the same Roll or Record are once rightly named but that all such Omissions Variations Defects and all other matters of the like nature being not against the right of the matter of Suit nor whereby the Issue or Trial are altered shall be amended by the Records That we are within the Benefit of this Statute I shall offer this to your Lordship The Declaration against the casual Ejector delivered to the Tenants in the Country was right that expressing the Demise to be the 10th of April 1696. which ought to have been the time mentioned in this Declaration for all the mistake was only betwixt septimo sexto and there is an Imparlance entred on the Roll in Easter-Term last against the casual Ejector which is right As in all Actions brought by Bill the usual Method of proceeding is to file the Bill or Declaration in the Office and as all Defects on the Roll are amendable by that so this being brought by Original instead of Filing a Bill in the Office an Imparlance is entred on the Roll and the Method of proceeding is in the same manner as in the
or not And yet Hetley saith p. 117. It was agreed by all that Ancient Demesne is a good Plea in Ejectment but not after Imparlance Marsham and Allen's Cas Dyer 210. in margine But now if a Man come in and pray to be made Defendant and to plead specially Ancient Demesne he shall do it and it 's now used of Course to plead Dilatories after Imparlance New Defendant not to plead Ancient Demesne after the former Imparlance 1 Keb. 361. Holiday's Case But in 1 Keb. 706. by Windham the new Defendant one that prays to be made so may plead Ancient Demesne after the former Imparlance because it 's not any Ouster of the Court of Jurisdiction Cur ' e contra He ought to plead Not guilty personally Roch and Plumpton's Case And in 1 Keb. 755. Plea of Ancient Demesne allowed the same Term Snow and Cooley The Court will allow Plea of Ancient Demesne the same Term contrary to the ordinary Rules in Ejectment And in Sutton and Courtney's Case it was prayed by Council That the Defendant might have Liberty to plead Ancient Demesne to a Declaration delivered before the Essoyn of this Term And how as of last Term which the Court granted and ordered him to attend the Scondary to settle the said Plea which is usually done by making the Plaintiff deliver a new Declaration as of this Term and so the Plea cometh quasi before Imparlance 2 Keb. 725. In David and Lyster's Case Rolls said Ancient Demesne is a good Plea after Imparlance for it goes in Bar of the Action it self and not in Abatement of the Writ Stiles 90. Plea puis darrein Continuance Ejectione Firme was brought for entring into three several Vills Release puis darrein Continuance before the Justices of Nisi prius they can not take it The Declaration makes mention of no Vill in certain The Defendant pleads a Release puis darrein Continuance before the Justices of Nisi prius Per Cur ' a Man cannot plead a Release at the Nisi prius after Issue joyned for so none should have Judgment When this Plea is pleaded the Justices of Nisi prius cannot proceed to take the Inquest and to this Plea of the Defendant the Plaintiff cannot there reply but he ought to reply in Bank After Issue joyned and a Venire fac ' awarded in such a Vill the Sheriff returns null tiâ—l Vill this is not good for he cannot return that thing which is contrary to the Issue to avoid the Trial à fortior ' one of the Parties cannot plead such matter at the Nisi prius the Authority of the Justices of the Nisi prius is to take the Verdict of the Jury and no other Plea And the Justices of the Nisi prius have no power to amend any Fault in the Declaration and when the Sessions end their Authority ceaseth Vid. Cro. Jac. 261. contra 10 H. 7. 21. 1 Bustr 92. Moor and Brown Yelv. p. 180. 1 Cro. Jac. 261. In Ejectione Firme against two one appears and pleads the General Issue and Process continues against the other who now appears and pleads Entry puis darrein Continuance in Abatement of the Writ Upon which the Plaintiff demurs and after Issue was found for the Plaintiff Demurrer a Confession of the Entry he shall not have Judgment for the Demurrer is a Confession of the Entry and shall abate his own Writ for in this Action the Term is to be recovered aliter if he had imparled Vide supra Plea in Abatement Dyer 226. Upon a Special Verdict in Ejectment Release pleaded at the day of the Argument and a day given for Argument before which the Defendant procures a Release of all Ejectments and at the day for the Argument pleaded the Release puis darrein Continuance and good aliter of a Release between the Nisi prius and Day in Bank because there he had no day in Court nor has he any Remedy but by Audita Querela if the Plaintiff sued Execution 2 Rolls Abr. 467. Wykes and Bunbury Cr. Jac. 646. Stamp and Parker Ejectment was brought of Lands in K. and two other Villages Entry puis dar ' Cont ' pleaded at the Nisi prius the Plea is receiveable The Defendant pleads Not guilty and at the Nisi prius pleaded That the Plaintiff puis le darrein Continuance entred into a Close parcel ' praemissorum and him expelled and a Demurrer upon it because he declared not in which of the Villages the Close lay Per Cur ' this Plea is receivable for it is matter in fait and peremptory to him who pleads it for as a Release or matter in Bar may be pleaded so may this and is receivable at the Discretion of the Justices if they perceive any Verity therein So is Rolls Abr. 630. Moor and Hawkins Cr. Jac. 261. Yelv. 180. Moor and Hawkins 1 Brownl 145. In Ejectione Firme the Defendant may plead at the Assises before the Justices of Nisi prius That the Plaintiff had entred into parcel of the Land mentioned in the Declaration puis darrein Continuance the Justices of Nisi prius may accept the Plea and dismiss the Jury and tho' they do not give any day to the Parties in Banco yet this is not any Discontinuance altho' that the Plea be collateral for the day of Nisi prius and day in Bank are one day For the Court in Bank gives day to the Jurors in Bank Nisi prius Justiciarii ad Assissas venerint and to the Parties day is given there absolutely 2 Rolls Abr. 630. Moor and Hawkins 1 Rolls Abr. 485. Sir Hugh Brown's Case In Ejectione Firme By this Plea the first Issue of Not guilty is discharged after pleading Not guilty a Release is pleaded puis darrein Continuance whereby the first Issue is discharged which the Court granted And tho' the Justices cannot try it at Nisi prius unless they think it but Colour and insufficient yet if he think it sufficient he must sign a Bill of Exceptions for the Trial is Error and so Yelv. Bill of Exception 181. And in this Case the Release of the Lessor of the Plaintiff is but Colour Also the Party cannot demur to such Plea also the Agreement to try and stand to the Title only is no Cause to over-rule such Plea and per Cur ' the Plea certified hither was allowed notwithstanding such Agreement being gained after 3 Keb. 67. Mich. 24. Car. 2. Carter and Haggard Accord and Satisfaction a good Plea in Ejectment H. P. brought Ejectione Firme against R. C. and A. his Wife and A. D. for an House in G. in c. upon Demise made by A. H. the 7th of April 8 Jac. for five years and that the Defendant the 10 of April in the same year ejected him c. The Defendant pleads That after the Trespass and Ejectment viz. primo Maij Anno octavo supradicto apud G. praedict ' talis inter R. C. praefat ' H. P. tam
it was ruled to be Error in the Exchequer-Chamber in the Bishop of Landaff's Case A Tryal by Consent in other County than where the Land lies is good in Ejectment But in Sir Thomas Jones's Rep. Devoren and Walcot's Case it is held That a Tryal by Consent upon the Roll in other County than where the Land lies is good in Ejectment 1 Rolls Abr. 787. 2 Keb. 260. Sir Thomas Jones 199. Devoren and Walcott In an Ejectione Firme in London upon a Lease made of Lands in Middlesex Tryal in London of Lands in Middlesex if the Defendant plead Not guilty this may be tried in London because the Counties may not joyn altho' the Jury ought to enquire of the Ejectment which was in Middlesex 2 Rolls Abr. 603. Herbert and Middleton But in Flower and Standing's Case in Ejectment Moved in Arrest of Judgment that the Lease was made at B. of Lands in another County and the Plaintiff was not in Possession it was moved in Arrest of Judgment That the Lease is made at B. of Lands in another County which was moved to be ill it appearing that the Plaintiff was not in Possession sed non allocatur for this is matter of Evidence and it shall be intended it was after Verdict and so is the common Course M. 20 Car. 2. B. R. In Ejectment one may not have Priviledge of Tryal of Lands in Wales in the English County next adjoyning In the King's Case 〈◊〉 shall be in the Exchequer tho' the â—and lie in Wales for they are to be tried in the County where the Land lâ—es otherwise it is if the King be Party it 〈◊〉 be tried in the Exchequer This Action was brought by one of the Ushers of the Exchequer by Priviledge Savile 10 12. Ejectment is brought against one in Custodia in B. Tryal by Mittimus in the County Palatine R. of Lands in the County Palatine and the Action was laid in B. R. and the Record was sent down by Mittimus from B. R. and a special Indorsement of the Postea and thereof one prayed Judgment against his own Ejector in an Action of Lands in the County Palatine of Chester which the Court granted because when the Defendant hath pleaded to Issue they may try it by Mittimus in the County Palatine Redvish and Smith's Case M. 15. 2 Car. B. R. Holloway and Chamberlen Action on the Case on feigned Issue out of Chancery Per Twisden Justice the Lands being in the Isle of Wight and the Jury of Surrey this Tryal is not allowable to try Conveyata or not this being a Windlace to try Ejectments in another County But in 1 Ventr 66. a Title of Land was tried out the proper County upon a feigned Wager whether well conveyed or not this is the usual Course of Issues directed out of Chancery 2 Keb. 634. Meres Case 1 Ventris 66. Who shall be good Witnesses in this Action or not It is agreed That a Trustee cannot be a Witness concerning the Title of the same Land Trustee the Interest in the Law being lodged in him But by Hales a Trustee may be a Witness against his Trust 2 Sid. 109. In Ejectment the Plaintiff challenged B. a Witness to a Devise because he was Trustee in a Will and had an Annuity but he having released both before the Suit the Court held him to be a good Witness or if he hath received it and tho' it be after the Action brought Sid. 315. Interest in Equity disables a Man to be a Witness Interest in Equity but one who hath an equitable collateral Title may be a Witness Parishioners may be a Witness to a Devise by which the Parish claims Lands to the Relief of the Poor Parishioners Exception was taken against a Witness produced to prove the Lease of Ejectment Witness had the Inheritance because he had the Inheritance in the Lands let but it was urged by the other side That the Defendant did claim under the same Person that the Plaintiff did and so the Witness was admitted to be sworn Stiles Rep. 482. Fox and Swann One Coparcener cannot be Evidence for another in Ejectment Coparceners because she claims by the same Title tho' she is not Party to the Suit but the Daughter of her Sister may be sworn for altho' she be Heir yet her Mother may give the Lands to whom she will being Fee-simple P. 13 Car. 2. B. R. Truel and Castel In Ejectment of Tythes the Plaintiff excepted against a Copyholder in Reversion after an Estate Tail Copyholder in Reversion after an Estate Tail for a Witness to prove the Boundary of a Parish and he was set aside for the possibility which makes him partial M. 20 Car. 2. B. R. Hitchcok's Case In Ejectment of the Manor of S. Trespass on Issue out of Chancery to try the Number of Acres the Defendant excepted to a Witness that had been a Trespassor as Servant to my Lord Lee in the Lands in Question an Action being depending The Court set him aside and thereupon the Plaintiff was Non-suited M. 20 Car. 2. B. R. Tuck and Sibley Exception was taken against a Witness to prove the Execution of a Deed by Livery and Seisin Estate at Will because he had an Estate at Will made to him of part of the Land but it was dissallowed vide Mod. Rep. 21 73 74 107. Hob. 92. In Ejectment at Tryal at Bar Executor of the grant of a Rent the Title of the Lessor of the Plaintiff was upon the Grant of a Rent with power to enter for Non-payment the Executor of the Grantor was produced as a Witness for the Defendant It was objected against him That in the Grant of the Rent the Grantor covenanted for himself and his Heirs to pay it and so the Executor being obliged he was no competent Witness 1 Vent 347. Cook and Fountain On on a Trial at Bar per Cur. If one of the Witnesses had part of the Lands in Question The Witness Sells part of the Lnd before Tryal and he sells or disposeth of it after his coming to London or at any time after he had notice of Trial he shall not be received to give Evidence tho' he sell bona fide and upon a valuable Consideration and althô he himself be not Occupier of the Land nor had been after the Writ purchased but another by his Commandment the Court will not suffer him to be a Witness because if Verdict pass against him he who acted by his Commandment may charge him in Action on the Case Witness claimed Estate by Title Paramount both there Titles but upon Examination it appering That the Witness claimed an Estate for Life by Title Paramount both their Titles viz. Plaintiff and Defendant he was Sworn Siderf p. 51. Wicks and Smallbrok's Case Exception was taken against a Witness to prove Execution of a Deed of Feofment by Livery and Seisin Two Witnesses were subscribed
Verdict concludes specially on one point the Court shall doubt of no more than the Jury doubts securs where it concludes it the General General conclusion depends upon all the Points of the Verdict by Payment of Money by Sir J. P. to one W. but yet in making up their Verdict they had given the Possession to the Plaintiff by Lease and laid the Entry upon him by W. without any Title under Sir J. P. but that was included and so not regarded Hen. 55. 262. But if the Jury conclude upon the General whether the Defendants Entry were lawful or not which is all one as if they had referr'd to the Court whether he be Guilty or not this depends upon all the Points of the Verdict indifferently that may prove him Guilty or Not guilty Hob. 262. So is Castle and Hobb's Case Cro. Jac. 22. The Verdict was on the passing by Letters Patents and the Jury found that if they were good Letters Patents then for the Defendant otherwise they found for the Plaintiff and they find no Title for the Plaintiff But it is intended there is a sufficient Title found for the Plaintiff unless by this Patent it be defeated and avoided so that if the Jury be satisfied that the Plaintiff hath any good Right by any other manner of Title the Court ought not to doubt thereof How and in what Cases Special Verdicts shall be taken by Intent or Presumption and what things shall be supplied I Devise all those my Lands in Shelford called Somerby to W. in Tail remainder over and it is not found per Verdict that those Lands in the Action are called Somersby But per Cur. for as much as the contrary is not found it shall be intended that he had not other Lands in Shalford than those which were called Somersby tho' that name be not at first given them for it was I Devise all my Lands in Shalford to his Wife for Life and the remainder in Tail prout ante Co. Eliz. 828. Peck and Channel It shall be intended that the Reversion continues in the Party as if a Special Verdict find that A. was possest for years of Land and that the Reversion in Fee was in B. Reversion shall be intended to continue and that A. Devise the Term to C. after the Death of M. whom he makes his Executor and dies and M. enter and during his Life C. after releaseth his possibility to B. and it is not found that the Reversion continued in B. at the time of the Release yet it shall be intended to continue in him in a Verdict it being found to be once in him by the same Verdict before p. 13 Car. 1. B. R. Johnson and Trumper A Life shall be intended to be in being tho' not found Where a Life shall be intended to be in being as was Fretzvil and Mollineux's Case If the Jury find the Title of the Plaintiff to be under one who was Lessee for Life and they find the Estate for Life but do not find the Tenant for Life is alive The Life shall be intended and supplied the conclusion and reference to the Court being upon other matter Special Vedict in Ejectment found that J. J. was deprived by the high Commissioners of a Benefice and it is found in this manner That such persons authorizati virtue Literar ' Patent ' Eliz. Reg. Jury find virtute Literar ' do not find they were under Seal and it is not found that the Letters Patents were under the great Seal yet this is good and shall be intended in a Verdict Tr. 13 Car. 1. B. R. Allen and Nash In Ejectment The Verdict was on a Proviso of Revocation of uses That it should be lawful for the Covenantor being in perfect health and memory under his Hand and Seal and by him delivered in the presence of three credible Witnesses c. It was agreed That tho' the Verdict do not find the Covenantor was in perfect health and memory yet that was well enough for it shall be presumed except the contrary were shewed What shall be presumed unless the contrary be shewed and so for the presence of credible and sufficient Persons Otherwise if it were in the presence of sufficient subsidy Men Hob. 312. Kibbet and Lee. If the Jury find that J. S. was seised in Fee and devised the Land to J. D. altho' they do not find the Land was held in Socage yet that is good for this shall be intended it being a Collateral thing and it being the most common Tenure If the Jury find that J. S. was seised in Fee Devise and made his Will in haec verba and that he afterwards died altho' they do not find he died seised yet it shall be intended he died seised and so good But If the Jury find the Words of the Will and yet do not find the will the Verdict is not good And if the Jury find a Bargain and Sale and a Fine Bargain and Sale and do not mention Inrolment or Proclamations it shall not be intended Hob. 262. In Ejectione Firme the Verdict finds that E. D. the Lessor and Conisor was seised in Tail of the Manor of B. at the time of the Recognizance and that this Manor was delivered in Extent but he doth not say that the Lands in the Declaration were parcel of the said Manor and so it s not found Extent that this Land was delivered in Extent and then the Defendant had no Title Per Cur. it s not material it shall be intended in a Special Verdict otherwise there is no Cause of a Special Verdict Cr. Car. 458. Cleve and Vere It was objected in Corbet and Stones's Case p. 1653. B. C. The Jury find that after a Fine levied and before the Ejectment the interest of M. C. F. B. and K. B. of the Lands in Question came to the Lessor of the Plaintiff That the Interest of the Lands came to the Lessor but shews not how but shews not how But per Cur. it is good enough for when the Jury finds the interest comes to the Lessor the Court intends all Circumstances that shall conduce to that fact for the Court doubts not when the Jury doubts not 4 Rep. 65. Fullwood's Case The Jury find that J. C. came before the Recorder of London Statute and Mayor of the Staple and acknowledged himself to T. R. in 200 l. Exception was taken that there was no finding of any Statute there for it was found that this was secundum formam Statuti and that it was by Writing But per Cur. its good enough for all Circumstances shall be intended Raym. 150. And there is another Rule in our Books persuant to this last In a Special Verdict all necessary circumstances shall be intended in a Special Verdict the Circumstances shall be intended or in a Special Verdict the Circumstances of every thing need not to be so strictly found as in pleading As in Ejectment the
the Remainder to the Heirs of the Body of the Husband the Husband makes a Feoffment in Fee with Warranty and takes back an Estate to him and his Wife for their Lives the Remainder over to make a Remitter to the Wife there ought to be an Entry To make a Remitter there must be a new Entry Prout lex pestulat and no new Entry is found by the Special Verdict to be by the Husband but only prout lex postulat The Court advised a new Tryal and to amend the Special Verdict and to find the Entry of the Baron and Feme The time of the Entry of the Plaintiff is sometimes material as in Fort and Berkley's Case The time of the Entry of the Plaintiffs Lessor Per Cur. In that Case which way soever the Law had been taken Judgment could not have been given for the Defendant There was a Lease made to Godolphin in Reversion under whom the Plaintiff claims Chersey the Lessor of the Plaintiff did Enter upon the Possession of Berkley the Defendant but when he did Enter does not appear then the Case is Berkley was in Possession If the Lessor of the Plaintiff enter'd before the Term began he was a Disseisor as it was Dier 89. Clifford's Case But it s said he was possest prout lex postulat Prout lex postulat as so he was of the Reversion too it does not appear but that he was a Disseisor and so continued Carters Rep. 159 160. If the Title appear to be in a Stranger they must find an Ouster made to him who had the Right Where actual Ouster must be â—ound And therefore in Ejectione Firme If the Jury find a Special Verdict being matter in Law upon a Lease for years reserving Rent upon Condition c. but no Title is found for the Plaintiff nor Defendant but it is only found that the Lessor of the Plaintiff being a Stranger Enters into the Land and Leaseth this to the Plaintiff by which the Plaintiff was possest prout lex postulat until the Defendant entred and ejected him this is not a good Verdict the Title appearing to be a in Stranger without any actual Ouster made to him who had the Right 2 Rolls Abr. 699. Bland and Inman In an Ejectione Firme the Jury find a Special Verdict and find Special Matter in Law whether J. S. had right to the Land upon which the Court adjudged That he has right to the Land But they find farther Ouster Dissesin That J. D Entered into the Land upon J. S. and was thereof seized prout lex postulat and made the Lease to the Plaintiff and the Lessee was by force of this possessed and it is not found that J. D. disseised J. S. and for that upon this Verdict shall not be intended that J. D. oustred J. S. and disseised him and then the Entry of J. D. and his Lease is void and so an Action does not lie against a Stranger who had nothing in the Land as was Hitchin and Glover's Case In Ejectione Firme by the Lessee of a Colledge if the Jury find a Special Verdict in this manner viz. That the Colledge let this to A. upon Condition and found a Special Matter in Law whether the Condition be broken and that the Colledge supposing the Condition broken by their Bayliff entred Entry by a Colledge how to be found and let this to the Plaintiff this is not a good Special Verdict without finding of a command given by the Colledge to the Bayliff to Enter to be by Deed for otherwise it is not good 2 Rolls Abr. p. 700. Dumper and Simms A. was seised and demised to his Executors the Lands in Question for the performance of his Will till the Executors levy 100 Marks or until his Heirs pay to them 200 Marks and that the Executors after his Death entred and were possest prout lex postulat Prout lex postulat how far extend and being so possest granted to the Plaintiff who entred and was possest till the Ejectment This is uncertain because it is not found that the Heir had paid the Money Super totam materiam for they say super totam materiam and to say prout lex postulat is not an affirmation of any certain Possession Palmer 192. Langly and Paine Of the Juries finding by Parcels It is a Rule Verdict that finds part of Issue and no-nothing for the residue is insufficient A Verdict that finds part of the Issue and nothing for the residue is insufficient As in Pemble and Sterne's Case Raym. 165. The Demise is laid of a Park Messuage 300 Acres of Land and the Verdict finds only as to parcel and nothing of the residue for the Plaintiff or the Defendant the Verdict is void so is the Rule 1 Inst p. 227. A Verdict that finds part of the Issue and finding nothing of the residue it is insufficient for the whole because they have not tried the whole Issue wherewith they are charged Car. Jac. 113. Ejectione Firme of a Lease of Messuages 3000 Acres of Land 3000 Acres of Pasture in D. per nomina of Monkhal and 5 Closes per nomina On Not guilty the Jury gave a Special Verdict viz quoad 4 Closes of Pasture containing by Estimation 2000 Acres of Pasture that the Defendant was Not guilty Quoad resid quoad resid they find the matter in Law this Verdict is imperfect in all for when the Jury find that the Defendant was Not guilty of 4 Closes of Pasture containing by Estimation 2000 Acres of Pasture it is not certain and it doth not appear of how much they acquit him and then when they find quoad residuum for the Special matter it is uncertain what that residue is a Venire fac ' de novo was awarded A Verdict of more than declared for Woolmer and Caston's Case But if the Verdict be of more than declared for it shall be void for the residue As Ejectment for him who pleaded all of 14 Acres and the Jury find Guilty of 20 Acres 14 Acres The Plaintiff shall have Judgment for the and the Verdict shall be void for the residue 2 Rolls Abr. 707. 719. Seabright's Case In Ejectment of a Manor and so many Acres as includes the Manor the Jury find for the Plaintiff as to the Manor praeter the Services and as to the Services Not guilty And Judgment pro Quer. Here are 2 manifest Errors 1. When the Court is of a Manor the Jury cannot find for the Plaintiff for that which is not a Manor and there is none that brings Ejectment of a Manor Ejectment of a Manor how to be brought but they also add the Acres that contain it to the end that if they prove it not a Manor they may recover according to the Acres but they must enter it so but not as here generally of both 2. The Verdict being as much as the Count the Judgment against the Plaintiff cannot be
they were fined severally where the Ejectment was against them all joyntly but because they were found several Ejectors of several Parcels the Judgment was good scilicet quilibet capiatur quoad his Parcel and if it had not been joynt it had not been been sufficient Bendl. 83. Darcy and Mason The Plaintiff shall be in Misericordia but once The Plaintiff shall be in Misericordia but once As Ejectment with Force three of the Defendants were found Guilty of the House and ten Acres of Land and Not guilty for the Residue The fourth Defendant is found Not guilty generally And Judgment was entred That he should recover his Term in the House and ten Acres of Land and Costs against the three Defendants and that the said three Defendants capiantur and that they be acquitted quoad residuun and that the Plaintiff quoad the three Defandants pro falso clamore for so much as they were acquitted pro falso clamore against the fourth Defendant sit in Misericordia It s good enough and the course that the Plaintiff in such Cases be in Misericordia but once which is specially entred Crok Car. 178. Dockrow's Case In Croke and Sam 's Case Stiles 122. 346. The Judgments was ideo considerat ' est qd recuperet and there wants Def. capiatur it is Erroneous Form of the Entry in Case of the Death of the Plaintiff or Defendant Note That 3 Plaintiffs in Ejectment were and on general Issue it was found for the Plaintiffs One of the Plaintiffs died during a Curi advisare And 4 days after the Verdict given was moved to stay Judgment a Special matter in Law whereof the Justices were not resolved and gave day over and in the mean time one of the Plaintiffs died This shall not stay Judgment for the Postea came in 15 Pas which was the 16 of April at which Day the Court ought to give Judgment presently But Cur. advisare vult and on the 19 of April one of the Plaintiffs died and the favour of the Court shall not prejudice for the Judgment shall have relation to the 16 day of April at which time he was alive 1 Leon. 187. Isley's Case In Ejectment two Defendants were found Guilty The Death of one Defendant shall not abate the Writ and the other not The one that is Not guilty dies The Plaintiff shave Judgment against the other So it is if he that is Dead had been Guilty because this Writ is but as a Trespass where the Death of one Defendant shall not abate the Writ Moor 469. 673. Griffith and Lawrence's Case Ejectione Firme against Baron and Feme Ejectione Baron and Feme Baron dies And Verdict pro Quer. and after between the Verdict and day in Banco the Baron dies and therefore the Court in Lee and Rowley's Case 1 Rolls Rep. 14. advised the Plaintiff to relinquish this Action and only to enter the Verdict for Evidence for if Judgment is given against the Defendant and one is dead at the time of the Judgment then this will be Erroneous per Dodderidge and Mann Preignotary But Coke said The Plaintiff may make allegation that the Husband is dead and shall have Judgment against the Wife And it hath been adjudged lately Ejectment against Baron and Feme which are but one person in Law yet if the Husband dies the Suit shall proceed against the Wife Hardr. 61. But in Rigley and Lee's Case Cr. Jac. 356. Ejectment against Baron and Feme after Verdict Baron dies before the day in Banco because it is in the nature of a Trespass and the Feme is charged for her own fact Per Cur. The Action continues against the Wife and Judgment shall be entred against herself because the Baron was dead Ejectment against divers Record where not to be amended all plead Not guilty and divers Continuances were between them all where revera one of the Defendants was dead after Issue joyned and a Verdict was after found pro Quer. and the Record was moved to be amended Per Cur. we cannot do it After Verdict and before Judgment the Plaintiff may surmise that the Defendant was dead before the Verdict and Continuance was against him One Defendent dies after Issue joyned as in full Life Jones 410. Sir John Fitzherbert versus Leech And In Ejectment to try the Custom of Copyhold Suggestion entred on the Roll one Defendant being dead after Non-suit The Plaintiff was Non-suit and one of the Defendants being dead Hales Chief Justices advised to Enter a Suggestion on the Roll that one was dead else the Judgment for the Defendants on the Non-suit will be Erroneous as to all M. 23 Car. 2. B. R. Hawthorn and Bawdan Ejectment was brought against seven Ejectment against seven and one dies hanging the Writ and Error brought one dies hanging the Writ and the Judgment was given against the six without speaking any thing of the seventh where the Judgment ought to be against them that were in Life and a nil cap. as to him that was dead Otherwise there is a variance between the Writ and Judgment And a Writ of Error was brought but it was not well brought for the seventh joyned in the Writ of Error which was ad grave damnum of all the seven But had it been omitted ad grave damnum of him that was dead it had been good 2 Rolls Rep. 20. Bethell and Parry Pal. 152. Mesme Case In Hide and Markham's Case it was Ruled After Verdict and before Judgment the Plaintiff dies and Judgment his given for him the same Term. That if one bring Ejectione Firme in B. R. and there had a Verdict in a Tryal at Bar and after before Judgment he dies and after the Judgment is given for him the same Term this is not Error for that the Judgment shall relate to the Verdict But if the Verdict pass against the Plaintiff at the Nisi prius and after before the Day in Bank he dies and after Judgment is against him this is Error for as much as Judgment is given against a dead Man 1 Rolls Abr. 768. and Jurdan's Case ibid. The Plaintiff in Ejectment dies ' The Plaintiff dies after Verdict and Judgment was not staid and why Addison's Case Mod. Rep. 252. Yet as that case was the Court would not stay Judgment for between the Lessor of the Plaintiff and the Defendant there was another Cause depending and tried at the same Assizes when this Issue was tried and by Agreement between the Parties the Verdict in that Cause was drawn up but agreed it should ensue the Determination of this Verdict and the Title go accordingly Now the submission to this Rule was an implicit Agreement not to take advantage of such occurrences as the death of the Plaintiff whom we know no ways to be concerned in point of Interest and many times but an imaginary person Per Cur. We take no notice judicially that the Lessor of the Plaintiff
whereof he is found Not guilty in as much as it is tenementorum praedictorum yet it shall be amended it being only the Default of the Clerk having the Postea before him when he entred the Judgment 1 Rolls Abr. 206. Sawyer and Hoskins Judgment quod recuperet and saith not terminum yet amended 1 Keb. 155. The Judgment was Amendment for Misprision of the Clerk quod recuperet the Possession of a Messuage Sixty Acres of Land Fifty Acres of Meadow and Fifteen Acres of Pasture whereas the Verdict was entred That he was found guilty of the Ejectment of a Messuage Ten Acres of Meadow and Thirteen Acres of Pasture and for the residue Not guilty so as there is not any Land in the Verdict and a lesser Quantity of Meadow and Pasture than is in the Judgment per Curiam it is amendable and is not like the Entry of a Capiatur for a misericerdia which is not amendable that being an Error in point of Law and cannot be imputed to the Default of the Clerk But here the Verdict is the Guide to the Judgment and when the Verdict is before the Clerk to enter up the Judgment it is but his Misprision especially the Entry of the Judgment in the Paper-book being right according to the Verdict Cro. Jac. 632. Mason and Stephenson EXECUTION In Ejectment against two Two Defendants one confesseth the other pleads Not guilty one confesseth the other pleads Not guilty and at the Tryal the Plaintiff is Nonsuited he cannot take Execution against him that confesseth but if by Rule of Court one be made Defendant for part and confess the Plaintiff notwithstanding the Nonsuit may take Judgment against him that confesseth for his part but if each Defendant take upon him the whole Title the Plaintiff in any case cannot have Execution but one Defendant being Lessor of the House reserving a Chamber who never had any notice of the Action and therefore Judgment entred of the whole House is not void quoad the Chamber only but wholly And Hide would have had the Attorney who entred Judgment pay Costs but ordered Possession to be delivered to the Tenant on Agreement to relinquish the Costs 1 Keb. 786. Burgoigne and Thomas It was a Question much debated If a Scire fac ' quare Executionem habere non debeat upon a Judgment in Ejectione Firme may be brought by the Administrator of the Lessee the Plaintiff in Ejectment Scire fac ' upon Judgment in Ejectment may be brought by the Administrator of the Lessee or Lessor himself or by the Lessor himself against the Free Tenants and Per Cur ' the Lessee or his Administrator as well as the Lessor himself shall have this Writ in such a Case this was on demurrer to the Scire fac ' Yet the Lessee nor his Administrator shall have it but the Lessor himself Sid. 317. Cole and Skinner Note Recovery by the Husband in Ejectione of the Wife 's Term. Baron and Feme are ejected out of a Term in the Right of the Wife and the Husband recovers in Ejectione Firme brought by him in his own Name this is an alteration of the Term and vests it in him only 1 Inst 46. Note After Judgment Court of Equity not to relieve the Mortgagor It was adjudged in Throgmorton and Sir Moyle Finch's Case That after Judgment for the Mortgagee in Ejectment a Court of Equity cannot relieve the Mortgagor but he ought to have preferred his Bill before Judgment 3 Bulstr 118. The Case was He by whom the Money was sent to be paid for the Redemption of the Land was by the way robbed of the Money but the Money was paid presently after Note also No Judgment upon Nihil dicit but upon Motion in Court In Ejectione Firme if a Rule is given to the Defendant to answer and he doth not and upon this another Rule is given to answer peremptorily and he fails to do it no Judgment shall be entred against him on a Nihil dicit but upon Motion in Court It is said in Carter and Claypool's Case 1 Rolls Abr. 887. If a Man recover in Ejectione Firme against J. S. who after dies he must sue Execution against his Heir for by Intendment J. S. his Ancestor the Ejector was was a Disseisor Of Judgment against ones own Ejector Judgment against the casual Ejector Council prayed that he might not plead to the Declaration of Michaelmas Term on Lease of the Bishop of Worcester made this January Habend ' from the 20th of October last which is ill per Cur ' and Judgment stayed but this is a good Declaration of this Term by new Delivery Declaration is of that Term when the Tenant appears tho' of Course a Declaration is of that Term always when the Tenant appears which was but this Term yet Judgment stayed 3 Keb. 729. Hill 18. Car. 2. Finch and Pley The Action was of Easter Term and the Demise and Title of the Plaintiff is but two days before Trinity Term A Trick to gain possession and there was a Rule for Judgment against the casual Ejector per Cur ' this is but a Trick to gain Possession as Sir Richard Mincham's Case was who delivered Ejectments in his Wife's Life-time on Lease then when he had Title as of subsequent Term when she was dead and it is not fit to put the Tenant to a Writ of Error So the Rule was set aside and ordered a new Declaration 3 Keb. 343. Tr. 26 Car. 2. Stedman's Case Judgment against ones own Ejector cannot be entred When Judgment against ones own Ejector to be entred till the Postea retorned and indorsed that the Nonsuit was for want of confessing Lease Entry and Ouster which the Secondaries agreed for a Rule 1 Keb. 246. Sir Hugh Middleton's Case Council prayed Judgment against his own Ejector in an Action for Lands in the County Palatine of Chester Judgment against ones own Ejector for Lands in Com' Chester which the Court granted because when the Defendant hath pleaded to Issue they may try it by Mittimus in the County Palatine 2 Keb. 135. Reddish against Smith CHAP. XV. Habere facias Possessionem 1 Keb. 579. How this Writ is to be executed And when and in what Cases a new Habere facias Possessionem shall be granted or not How the Sheriff is to deliver Possession Habere facias Possessionem after the year without Scire fac ' and why THis Writ is made out by the Clerk of the Judgments By whom made out and when after Costs taxed and the Judgment signed In Ejectione Firme of 20 Acres of Land The Defendant on Not guilty pleaded is found Guilty for 10 Acres and Not guilty for the Residue Now the Plaintiff at his own peril Plaintiff at his own Peril to be put in Possession of the Acres sound upon his own shewing which they are shall be put in Possession Savil p. 28. And if a Man bring