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
to prove the Livery and Seisin One who had Estate at Will to prove a Livery afterwards one of those Witnesses had an Estate at Will made unto him of part of this Land and because being produced as a Witness to prove the Execution of the Deed was excepted against because he was a party now interested in the Land and so his Oath was to make his own Estate good But per Cur ' he may well be Sworn a Witness to prove the Livery and Seisin this being in affirmance of the Feoffment 1 Bul. 203. The Father testified a Deed in Persuance and Affirmance of a Lease Father a Witness for the Son made to his Son by himself which the Court allowed his Interest being past away 1 Keb. 280. Jay and Ryder In Ejectment on Extent on Mortgage on Trial at Bar. The Defendant excepted to the Plaintiffs Witness because his Father paid a Debt as Security with the Defendants elder Brother for the Defendants Father but there being no Counterbond and therefore doubtful in Equity whethere he as Heir could recover any thing against the Defendant as Heir the Court Swore him but if he were to let himself into a certain Interest thô but in Equity the Court will set him aside 2 Rol. 345. Vincent and Tirrinsharp In Ejectment one Baker who had been Sollicitor for P. the Defendant was produced as a Witness concerning the Rasure of a Clause in a Will supposed to be done by P. The Question was In what Case Sollicitor c. not to give Evidence against his Clyent if he ought to be examined about this because having been Sollicitor he was obliged to keep his Secrets but it appearing that B. had made this Discovery to him about which he was now to give his Evidence before such time as he had retained him Per Car. He was Sworn aliter if he had been retained his Sollicitor before The same of an Attorney or Councellor 1 Vent 179. Cutts and Pickering What shall be good Evidence in this Action and what not There are several Cases in our Books concerning Evidence upon Leases made to try the Title which I shall not at present meddle with they being of no great use since the alteration of Practice in this Action but I shall mention those which are of Dayly use and principally aim at such Evidence which is allowed or disallowed as to the proving of Title to Land without the knowledge of which there are infinite Failures and Non-suits in this Action and I shall first begin with Matters of Record and then Matters of Fait Bills Answers Depositions and other Sorts of Evidences as to Antiquities Pedigrees and what Evidence a Man must have to make Title in several Cases And Lastly Treat of Demurrers upon Evidence and Exemplifications of Verdicts As to Matters of Record If a Deed be Pleaded the Party must shew it in Court Record shewed it Court so if a Record be Pleaded it must be sub pede sigilli but Evidence it s not absolutely necessary to shew either if it can otherwise be proved to a Jury as in 1 Vent 257. In Evidence for Lands in Ejectment in Ancient Demesne the Court admitted of Evidence to prove a Record to cut off the Intail which was lost and it may be proved to a Jury by Testimony as the Decree in Henry the Eighth's time for Tithes in London is lost yet it hath been often allowed there was one And further in this Case it appeared That part of the Land was Leased for Life and the Recovery with a single Voucher was suffered by him in Reversion Long Possession and so no Tenant to the Praecipe yet in regard the Possession had followed it a long time the Court would prefume a Surrender The Copy of a Record may be shewed and given in Evidence to a Jury Copy of a Record for Records are of so high a nature and have such great credit in the Law that they cannot be proved by any other means than by themselves and no Rasure or Interlineation shall be intended in them and therefore a Copy of a Record being testified to be true is permitted to be given in Evidence but the sure way is either to exemplifie it under the great Seal or at least under the Seal of the Court 10 Rep. Leyfeild's Case In Ejectment for Lands in Brecknockshire Upon Not guilty and Tryal there The Defendant gave in Evidence a Recovery in a Writ of Quod ei deforceat which is their Writ of Right at the great Sessions there and Issue being tendered therein the Defendant produced an Exemplification of the Record under the Seal of the great Sessions but not the Record it self The Plaintiff Demurs to the Evidence and the Question was whether the Exemplification maintained the Issue or not It was agreed That a Sworn Copy of a Record in Wales might be given in Evidence Exemplificacation but not an Exemplification because the Court here ought not to take notice of such an inferior Seal but if it were Exemplified under the great Seal it would be Evidence and Proof tho the Record it self were lost And yet Whitehead's Case was That an Exemplification under the Seal of the Mayor of Bristol of a Recovery suffered there under the Town Seal should be given in Evidence tho the Record it self could not be found Note It must be given in Evidence in the like manner as it is to be pleaded and that is under the great Seal Hardress 118 119 120. Henry Olive versus George Gowin And by Hales Exemplification of a Recovery in the Marquess of Winchester's Court in ancient Demesne was allowed because it was ancient One had gotten a presentation to the Parsonage of G. in Lincolnshire and brought a Quare Impedit and the Defendant Pleaded an Appropriation and there was no Licence of Appropriation produced but because it was ancient the Court will intend it and in an ancient Recovery they would not put one to prove Seâ—sin of a Tenant in a Praecipe Mod. Rep. The Scyrograph of a Fine may be given in Evidence Scyrograph of a Fine but not delivered to the Jury 2 Sid. 145 146. in a general Issue in Assize Plowd Com. 411. Note Fine and Non-claim If a Fine be given in Evidence with five years Non-claim the Fine must be shewed with Proclamations under Seal and the Scyrograph will not serve A Fine or Recovery Fine Recovery may be found by the Jury without shewing it under Seal but they cannot find against what is admitted by the Record Sid. 271. The Copy of a Recovery was suffered to be given in Evidence Copy of a Recovery the Recovery it self being burnt Mod. Rep. 117. Green and Proud The Court allowed an old Recovery No Tenant to the Praecipe proved thô no Tenant to the Praecipe could be proved but it shall be intended Cro. Jac. 455. Mod. Rep. 117. Nothing may be delivered in Evidence to a
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
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
pray'd 91 594. in not certifying Pledges on Diminution alledged in a Writ of Error for that Cause per Cur ' Omission of Pledges or of one is Error tho' after a Verdict and the Defendant after in nullo est erratum pleaded may pray Diminution which cannot be granted but on Motion and then only to affirm the Judgment yet when the Record is come in it may be made use of to avoid the Judgment and because Diminution was not prayed the Court conceived it cannot be assigned for Error 1 Keb. 278 281. Hodges's Case Bail In Ejectment against Two one does not put in Bail it is Error 2 Rolls Abr. 46. Dennis Case In Ejectment on Non Culp pleaded by the Attorney for the Defendant Common Bail entred after the Attorney was dead Verdict was for the Plaintiff who had Judgment and Error was brought to reverse it because no Bail was put in for the Defendant yet the Attorney being once retained by Warrant to put in Bail and took his Fee and being but common Bail tho' the Attorney was dead yet the Bail was then entred as of the same Term it ought to have been done 3 Bulstr 181. Denham and Comber Trespass is within the Act of 21 Jac. which names Trespass generally Stat. 13 Car. c. 2. but Ejectment is not within that Act. Stat. 13 Car. 2. c. 2. orders Bail on Error in Trespass 1 Keb. 295. Power 's Case Note Error without Bail is a Supersedeas in Ejectment notwithstanding the new Act 13 Car. 2. c. 2. it being not within the general Word Trespass Id. p. 308. Lufton and Johnson Tr. When common Bail to be filed 14 Car. 2. B. R. ordered that Common Bail shall be filed for the Defendant before any Declaration by Bill in such Action shall be delivered to the Tenant in Possession of the Lands in such Declaration contained and that if the Attorney for the Plaintiff in B. R. shall fail thereof then no Judgment for the Plaintiff shall be entred against the casual Ejector nor shall the Tenant in Possession confess Lease-entry and Ouster at the Trial. Attorney was made Lessee in Ejectment Imparlance and he would not grant an Imparlance to the Defendant as the Course is because he is Attorney of this Court B. R. and so claims Priviledge that the Defendant may answer him this Term or else he will enter up Judgment against him for want of a Plea Quaere Stiles Rep. 367. CHAP. IV. Against whom Ejectione Firme lies or not and of the casual Ejector Of the old way of Sealing Leases of Ejectment by Corporations by Baron and Feme in what Cases now to be used EJectione Firme against one Simul cum had been ruled to be good and so used in the Common Pleas tho' heretofore it was adjudged to the contrary Stiles Rep. 15. It lies against Baron and Feme Lib. Intr. 253. 9. Rep. 77. e. Peytoe's Case Plo. 187. It lies against the Ejector or wrong Doer be who he will When the Course was to seal an Ejectment to try a Title of Land Who was accounted an Ejector formerly the Ejector in Law was any Person that comes upon any part of the Land c. in the Ejectment-Lease tho' it be by chance and with no intent to disturb the Lessee of Possession next after the Sealing and Delivery of the Ejectment-Lease and such an Ejector was a good Ejector against whom an Action of Ejectione Firme may be brought to try the Title of the Land in Question But he that was to try a Title of Land in Ejectment ought not to have made an Ejector of his own against whom he might bring his Action or to consent or agree with one to come upon the Land let in the Ejectment-Lease with an Intent to make him an Ector and to bring his Action against him for by that means the Tenant in Possession of the Land was after put out of Possession by a Writ of Habere fac ' possessionem without any Notice given to him or his Lessor of the Suit but now the Law is otherwise and altered by the new way of Practice The new course in Ejectments For now it is not usual to seal any Lease of Ejectment at all in this Action but the Plaintiff that intends to try the Title feigns a Lease of Ejectment in his Declaration and an Ejector and draws a Declaration against his own Ejector who sends or delivers a Copy thereof to the Tenant in Possession giving him Notice to appear and defend his Title or else the Ejector will confess or suffer Judgment by Default But if the Tenant or the Lessor will defend the Title then it is usual for them to move the Court that they may be made Ejector to defend the Title that is the Tenant appears and consents to a Rule with the Plaintiff's Attorney to make himself Defendant in the room of the casual Ejector and this the Court will grant if he will confess Lease Entry and Ouster and at the Trial stand meerly upon the Title but if they do not at the Trial confess Lease Entry and Ouster then the Judgment shall be entred against the casual viz. the Plaintiff's own Ejector Note The Court said in Addison's Case Mod. Rep. 252. That they take no Notice judicially that the Lessor of the Plaintiff is the Party interested therefore they punish the Plaintiff if he release the Damages but in point of Costs they take notice of him But before I proceed further The old way of Sealing Leases of Ejectment I hope it will not be tedious a little to shew how the Law and Practice was taken when Ejectment-Leases were sealed and Entries to be duly made and Warrants of Attorney made to deliver the Lease upon the Land by a Corporation Baron and Feme c. especially considering that in Inferiour Courts the old way of actual sealing Leases is continued Winch 50. 1 Brow nl 129. Godb. 72. Earl of Kent's Case And first The way to execute a Lease to try a Title the Land being in many Men's Hands was to enter into one of the Parcels and leave one in that place and then he must go into another and leave one there and so of the rest and then after he had made the last Entry there he sealeth and delivereth the Lease and then those Men that were left there must come out of the Land But when a Title was to be tryed by Ejectment and a Lease to be executed by a Letter of Attorney the Course was That the Lessor do seal the Lease only and deliver it as an Escrow and the Letter of Attorney and deliver the Letter of Attorney but not the Lease for the Attorney must deliver that upon the Land And upon Ejectment brought of Land in Two Villages as of an House and Forty Acres of Land in A. and B. and a special Entry in the Land adjoyning to the House viz. the putting in of an Horse which was drove out
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
difference was taken Per Cur ' By intendment and Construction of Law Demand of a part without shewing into how many parts divided when any parts are demanded without shewing in how many parts the whole is divided that there remains but one part not divided as if two parts are demanded there remains a third part and when three parts are divided there remains a fourth part But if any demand be of other parts in other Form there he ought to shew the same specially as if one demands three parts of five parts or four parts of six c. 13 Rep. 58. Declaration in Ejectment is Quod cum such an one dimisit Declaration in Ejectment with Quod cum is good not so in Trespass it 's good here because he cannot have the Action without a Lease but in Trespass as Assault and Battery c. it is not so And Dodderidge took this difference Where the thing on which the Action is brought hath continuance and where the Action is brought for a thing done and past In Ejectione Firme there the Lease hath still Continuance and there such a Declaration with a Quod cum is good because it is in the Affirmative but where the thing is past as Battery it ought not to be with a Quod cum 2 Bulstr 214. Sherland's Case As for the manner of declaring in respect of the thing demised vid. supra titulo Of what things an Ejectment lies To which I shall add one Case in the Exchequer Ejectment for so many Acres of Meadow and so many Acres of Pasture on Non culp ' the Jury find a Demise de Herbagio Pannagio of so many Acres De Herbagio Per Cur ' by the same Reason that an Ejectment lies of a Lease of Herbage by the same Reason the Plaintiff ought to declare accordingly and Herbage does not include all the Profits of the Soil Herbage does not include all the Profits of thd Soil but only part of it Hardr. 330. Wheeler's Case in Scacario The Form of a Declaration from a Parson of Rectory and Tenements in B. R. with an Averment of the Parson's Life 1 Rep. 149. Chedington's Case The Form of a Declaration in Ejectment in the Common Pleas. Mich. 16 Car. 2. Tempest Midd ss A. B. nuper de London Gen attachiat fuit ad respondend W. I. de plito quare vi armis unum Messuagium unum Gardinum decem acras terre tres acras prati quatuor acras pasture cum pertinentiis in H. que S. W. vid eidem W. dimisit ad terminum qui noudum preteriit intravit ipsum a firma sua predict ejecic alia enormia ei intulit ad grave damuum ipsius W. contra pacem Dom Regis nunc c. Et unde idem W. p I. S. Attornat suum queritur qd cum predict S. primo die Octobris Anno Regni Dom Regis nunc quinto decimo apud H. predict dimisit prefat W. Tenementa predicta cum pertin habend eid W. assignat luis a Festo Sancti Michaelis Archangeli tunc ultimo preterito usque finem terminum quinque annorum extunc ê“xime sequen plenarie complend finiend virtute cujus dimissionis idem W. in Tenementa predicta intravit fuit inde possessionat Et sic inde possessionat existen predict A. postea scilicet eod primo die Octobris Anno Regni dict Dom Regis quinto decimo supradicto vi armis c. in Tenementa pÌ„dicta cum pertin que pÌ„dict S. pÌ„fat W. in forma pÌ„dicta dimisit ad terminum pÌ„rict qui nondum preteriit intravit ipsum a firma sua pÌ„dicta ejecit ac alia enormia c. ad grave damnum c. contra pacem c. On. de dicit quod deteriorat est damnum het ad valentiam decem Librarum inde ê“duc Sectam Et pÌ„dict A. p G. I. Attornat suum ven defend vim injuriam quandque c. I. Lo. usque Octab Hillarij In the King 's Bench. TH. queritur de Iacobo W. Wart ss in custod Marr Marese Dom Regis coram ipso Rege existen ê“ eo videst quod cum H. M. Gen ultimo die Ianuarij Anno Regni Dom nostri Caroli secundi nunc Regis Anglie c. vicesimo apud B. in Com predict dimisisset concessisset ad firmam tradidisset pÌ„fato T. unum Messuagium duas Aâ—ras Pasture cum pertiu scituat jacen existen in B. pÌ„dice habend tenend renementa pÌ„dicta cum pertin prefato T. assignat luis a vicesimo quinto die Decembris tunc ult pÌ„teris usque plenum finem terminum quinque annorum extunc ê“xime sequen plenâ—rÌ„ finiend complend virtute cujus quidem dimissionis idem T. in tenementa pÌ„dicta cum pÌ„tin intravit fuit inde possessionat quousque pÌ„dict Iacobus postea scilt eodem ultimo die Ianuarij anno Regni dict Dom Regis nunc vicesimo supradict vi armis c. in tenementa pÌ„dicta cum pertinen in super possessionem ipsius T. inde intravit ipsum T. a possessione sua predict termino suo pÌ„dict inde nondum finit ejecit expulit amovit ipsumque T. a possessione sua pÌ„dict extratenuit adhuc extratenet alia enormia ei intulit contra pacem dict Dom Regis nunc ad damnum ipsius T. 20 l. Et inde ê“due Sectam c. In the Office of Pleas in the Exchequer A. B. Derb ss debitor Dom Regis nunc venit coram Baronibus hujus Scacarij duodecimo die Februarij hoc Termino p C. D. Attorn suum queritur p Billam versus E. F. pÌ„sent hic in Curia eodem die de plito Transgressionis Ejectionis Firme pro eo videlt qd cum quidam I. B. secundo die Feb Anno Regni dict DonÌ„i Regis nunc vicesimo primo apud c. ê“ut supra in B. R. ad vamnum ipsius A. decem Librarum Quo minus c. Et inde producit Sectam c. A Copy of the Declaration you must leave with the Occupier of the House and Land with this or the like Indorsement JAmes B. yon may perceive that I am sued for the Messuage and Lands within mentioned being in your Possession these are therefore to desire you to defend your Title or else I shall suffer Judgment to be entred by default Or thus UNless the Tenant in Possession or they under whom he claims do next Trinity Term appear to this Declaration and make him or themselves Defendants thereunto and by Rule of Court confess the Lease Entry and Ejectment and insist only upon the Title at the Trial the Defendant in this Declaration will confess Judgment and Possession will be delivered accordingly to the Plaintiff and you turned out of Possession Your Friend J. D. To A. B. Tenant in Possession of the Premisses within mentioned To this
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
per Cur. the Verdict may be taken according to the Title and so it was Qu. how the habere fac ' Possession in such case shall be executed Sid. p. 229. Ablett and Skinner The Plaintiff Declares of a Lease made the 14 of January Variance as to time 30 El. Hab. from the Feast of Christmass then last past for three years and upon the Evidence the Plaintiff shewed a Lease bearing date the 13 of January eodem ann And it was found by Witnesses that the Lease was Sealed and Delivered upon the Land the 13th day Per Cur. Notwithstanding this variance the Evidence is good enough to maintain this Declaration for if a Lease was Sealed and Delivered the 13 day it was then a Lease of the 14 4 Leon. p. 14. Force and Foster The Plaintiff declared in Ejectment of 100 Acres of Land Evidence of fewer Acres then delcared and shewed his Lease in Evidence of 40 Acres And it was urged That he failed of his Lease for there was no such Lease as that whereof he did Count. But per Cur. it is good for so much as was contained in his Lease and for the Residue the Jury may find the Defendant Not guilty Cr. Eliz. p. 13. Guy and Rand and yet it is held 2 Rolls Abr. 72. Brown and Ells. If the Plaintiff Declare in Ejectment upon a Lease for years of three Acres and in Evidence he shews but a Lease of a Moiety this is a material variance for it is not the same Lease Ejectment of Meadow and Pasture and the Evidence is de Herbegio and Pannagio Ejectione Firme of so many Acres of Meadow and so many Acres of Pasture Upon Not guilty the Jury find a Demise de Herbagio and Pannagio of so many Acres the Question was in Wheeler and Toulson's Case Hard. 330. If this Evidence shall maintain the Issue The Court inclined it did not Ejectment doth lie of a Lease of Herbage and then by the same Reason the Plaintiff ought to Declare accordingly and Herbage doth not include all the profit of the Soil but part of it The Declaration was of a Joynt Lease made by two Joynt Lease by Tenants in Common and on Evidence it appears they were Tenants in Common By three Justices against one it is good Cr. Jac. 166. Mantle's Case 83. Ejectment was of Lands in Oxenhope and the Witnesses upon examination did swear there were two Oxenhopes upper and nither without Addition and upon this the Plaintiff Nonsuited at York Assizes If a Man Declare of a Lease made by Baron and Feme and gives in Evidence a Lease made by the Baron only this is a material variance Note The day of the Filing of the Declaration in the Ejectment may be given in Evidence where the Demise is laid the same Term Vid. Siderf p. 432. Perdyer's Case Of Demurrer to the Evidence It was held by all the Court upon Evidence to a Jury Demurrer on Evidence That if the Plaintiff in Ejectione Firme or other Action gives in Evidence any matter in Writing or Record or a Sentence in the Spiritual Court as it was in this Case and the Defendant offers to Demur there upon The Plaintiff ought to joyn in Demurrer or wave the Evidence because the Defendant shall not be compelled to put a matter of difficulty to the Lay-gents and because there cannot be any variance of a matter in Writing but if either Party offer to Demur upon any Evidence given by Witness the other unless he pleaseth shall not be compelled to joyn because the Credit of the Testimony is to be examined by a Jury and the Evidence is uncertain and may be enforced more or less but both Parties may agree to joyn in Demurrer upon such Evidence and if the Plaintiff produce Testimonies to prove any matter in fact upon which a Question ariseth if the Defendant admit their Testimones to be true he may Demur but in the Case of the King the other Party may not Demur upon Evidence shewn in Writing or Record for the King unless the King's Council will thereunto assent In the King's Case But the Court in such Case shall charge the Jury to find such special matter but this is by Prerogative who may waive the Demurrer or take Issue at his Pleasure Cro. Eliz. 751. Midlet and Baker 5 Rept 104. Baker's Case And in 1 Inst. p. 72. If the Plaintiff in Evidence shew any matter of Record or Deeds or Writings or any Sentence in the Ecclesiastical Court or other matter of Evidence by Testimonies of Witnesses or otherwise whereupon doubt in Law ariseth and the Defendant offer to Demur in Law thereupon the Plaintiff cannot refuse to joyn in Demurrer no more than in Demurrer on a Count Replicat c. and so è Converso may the Plaintiff Demur in Law on the Evidence of the Defendant but the King's Council shall not be inforced to joyn in Demurrer A Demurrer to Evidence never denies the truth of the fact but confeseth the fact and denies the Law to be with the Party that shews the fact Plowd Newis and Scholastica's Case If a Demurrer be upon the Evidence the Evidence ought to entred verbatim Keb. 77. Exemplification of a Verdict A Verdict against one whom either the Plaintiff or Defendant claims may be given in Evidence against the Party so claiming Contra if neither claim under it Mich. 1656. B. R. Duke and Ventres If a Verdict pass for two Defendants altho ' by default of ones not putting in Bail They may not have Judgment yet they may exemplifie their Verdict to give this in Evidence to another Jury 2 Rolls Rep. 46. Dennis and Bremblecot In Ejectment brought by a Reversioner or Debt upon the Statute of Tithes Ed◠6. brought by a Proprietor of Tithes after a Verdict at Law the Lessee or the present Proprietor the Reversioner of the Lands or Tithes shall hive advantage of the Verdict and gave it in Evidence And the Reasons are because they cannot be immediate Parties to the Action or Suit for that must be prosecuted by the Lessee or present Tenant and they may give in Evidence as well as the Plaintiff himself Hard. 2. Rep. 472. CHAP. XII Rules for Learning of Special Verdicts Of Estoppels found by the Jury and how they shall bind What is a material variance between the Declaration and Verdict Of priority of Possession Where the Special Conclusion of the Verdict shall aid the Imperfections of it Where and in what Cases the Verdicts makes the Declaration good Verdict Special taken according to intent Difference where the Verdict concludes specially on one Point and where it concludes in general or between the Special Conclusion of the Jury and their Reference to the Court. Circumstances in a Special Verdict need not be precisely found Where the Judges are not bound by the Conclusion of the Jury Of certainty and uncertainty in a Special Verdict Of the finding quo ad residuum certainty
the Custom be not well found it was not found in that Case that the Land was demisable according to the Will of the Lord and so it may be free-Free-Land and the Custom did not extend to it nor is it found that the Parties to whom the Lettor of Attorney was made to surrender were customary Tenants and then the primer Possession by the Defendant will make a Disseisin and Judgment pro Quer ' In Ejectment prior Possession is a good Title against the King's Presentation In Ejectment prior Possession a good Title against the King's Presentation not so in a Quare Impedit but not so in a Quare Impedit for there the Incumbent ought altho' Defendant to make a Title against the King's Presentation without Title as is the Book 7 H. 4. 31. but if the Incumbent be in by Entry of his own Head without Presentation it is not sufficient in either 1 Keb. 503. Brown and Spencer 3. Si constare poterit that it is the same Land it is good The Special Verdict is good si constare poterit that it is the same place and the same Land in the Declaration mentioned although it be not found expresly and although the Jury find not that it is the same Land in the Declaration mentioned yet if they find the Entry and Ejectment according to the Declaration it is sufficient and therefore the Mistake of a Letter or Addition of a Word shall not hurt the Verdict si constare poterit c. Siderf p. 27. Hoare and Dix 4. The Special Conclusion of a Special Verdict shall aid the Imperfections of it In many Cases the special Conclusion of a Special Verdict shall aid the Imperfections of it If the Jury find a Special Verdict and refer the Law upon that special Matter to the Court although they do not find any Title for the Defendant which is a collateral thing to the Point which they refer to the Court yet the Verdict is good enough for all other things shall be intended except this which is referred to the Court. As in Ejectment if the Plaintiff declare upon a Lease made by A. and the Jury find a Special Verdict and matter in Law upon a Power of Revocation of Uses by an Indenture and Limitation of new Uses and then a Lease for years made to the Plaintiff by the Lessor in the Declaration and another in which there is a perfect Variance but they conclude the Verdict and refer to the Court whether a Grant of a new Estate found in the Verdict be a Revocation of the first Indenture or not The special Conclusion shall aid the Verdict so that the Court cannot take notice of the variance between the Lease in the Declaration and the Verdict because the doubt touching the Revocation is only referred to the Court. And although they refer to the Court whether this be a Revocation of the first Indenture and not of the former Uses or Limitation of new Uses as it ought to be yet in a Verdict this is good for their intention appears Intent But where the Jury find specially and furthermore conclude against Law Where the Verdict is good and the Conclusion ill Diversity between a geneneral Conclusion and a special Conclusion the Verdict is good and the Conclusion is ill and the Court will give Judgment upon the special Matter without having regard to the Conclusion of the Jury 5. Rep. 97. Litt. Rep. 135. 2 Keb. 362 412. 11 Rep. 10. Moor 105 269. So note this Diversity between a special Conclusion of the Jury and Reference to the Court and a general Conclusion and Reference to the Court A Special Verdict may make the Declaration good A precise Verdict may make the Declaration good which otherwise would be ill as the Declaration is of Lands in Sutton Coefeild and the Verdict finds the Lands in Sutton Colefeild and the Deed is of Lands in parva Sutton infra Dominium de Sutton Colefeild so neither the Verdict nor Deed agree with the Declaration for the Vill where the Lands lie therefore no Judgment ought to be given But per Cur ' the Verdict finding Seisin de infra script ' messuag ' that is quasi an express Averment and finding that Sutton Coefoild and Sutton Colefeild parva Sutton infra Dominium Sutton Colefeild are all one and that they be all in one Parish and this being in a Verdict when the Jury found Quod dedit tenementa infra script ' by Name in the Deed shall be intended all one So it s aided by the finding of the Jury who find expresly that the Bishop dedit Tenementa infra Script Cr. Jac. 175. Ward and Walthow Yelv. p. 101. Mesme Case 5. The Judges are not bound by the conclusion of the Jury as in Ejectment on a void the Jury find Lease Lease that if the Entry of the Daughter was not congeable the Defendant is Guilty Now the Judges are not bound by the conclusion of the Jury but may Judge according to Law as 10 Ed. 4. f. 70. Trespass was brought against the Lord for Distraining The Jury found for the Plaintiff But because the Statute of Marlbudge is non ideo puniatur Dominus c. The Court shall adjudge for the Defendant So is the Rule in Plowd Com. 114. b. when the Verdict finds the fact but concludes upon it contrary to Law the Court shall reject the conclusion as in Amy Townsend's Case The Jury find precisely that the Wife was remitted which was contrary to Law for their Office is to judge of matters of Fact and not what the Law is So if the Jury collect the contents of a Deed and also find the Deed in haec verba The Court is not to Judge upon their Collection but upno the Deed it self Moor p. 105. Lane and Cooper And yet the Court is sometimes bound by the conclusion of the Jury as in Ejectione Firme of one Acre The Jury find the Defendant Guilty of one Moiety and a Special Verdict for the residue and conclude if the Court shall find him Guilty of all then c. The Plaintiff cannot have Judgment upon this for a Moiety if the Court shall not adjudge him Guilty of the whole for the Special conclusion cited 1 Rolls Rep. 429. 1. Verdict to be taken according to Intent Special Verdict shall be taken according to Intent and the Court must make no more doubts than the Jury does the finding matter of Fact being only the Jurors Office as 5 Rep. Goodales's Case The doubt was whether the payment of 100 l. with agreement to have some part of it back again were sufficient upon a Condition to defeat the Estate of a Stranger The Court regarded not that there was no Title found for the Party that made the Entry whereupon the Action was brought Ejectione Firme was brought by G. against W. upon Not guilty the Jury concluded their doubt upon performance of a Condition When the
Jury found he delivered the Lease upon the Land but found not that he had entred and claimed Cr. Eliz. 167. Willis and Jermin And in Goodall's Case 5 Rep. it was resolved That all matters in a Special Verdict shall be intended and supplied but only that which the Jury refer to the Consideration of the Court. Also in Molineux's Case Cr. Jac. 146. It was excepted to a Special Verdict That the Life of B. who was Tenant for Life A Life and the Lessor in the Action was not found But per Cur. it shall not be intended that she is dead unless it been found And in a Special Verdict all necessary Circumstances shall be intended unless found to the contrary Some things shall not be intended But some things the Court shall not intend as in Sadler and Draper's Case Sir Thomas Jones p. 17. where the Case was whether the next of the Blood being of the half Blood i. e. whether the Brother of the half Blood of the Mother of an Infant shall be Gardian in Socage of Land by discent on the part of the Father Cro. Eliz. 825. But because the Verdict did not find that the Lessor of the Plaintiff who claims to be Gardian in Socage was proximus in sangine à quel c. that the Court shall not intend it and so no Title found pro Quer. Ideo nil cap. per Bill If the Jury find a Special Verdict viz. A. deviseth his Lands to his Executors quousque they shall Levy such Money or his Heirs shall pay to them the said Sum and conclude upon the matter si c. but they do not find the Heir had not paid the Money Difference between the Condition and Limitation of an Estate as to the finding by the Jury This quousque the Heir pay the Money is parcel of the Limitation of the Estate which ought to have been found Otherwise the Court who is to Judge upon the whole matter shall not intend it Tr. 19. Jac. B. R. Langley and Pain But if in a Special Verdict the Jury find J. S. was seised in Fee of Land and made his Will and by it deviseth all his Estate to B. paying Debts and Legacies and refer to the Court the matter in Law viz. whether a Fee passeth by this but find not that B. had paid the Debts and Legacies yet this is a good Verdict because it is a Condition properly and not a Limitation Tr. 1651. Johnson and Kerman yet if the Verdict find that J. S. was seised in Fee of Land and possest of certain Leases for years of other Lands and by his Will deviseth his Leases to J. D. and after deviseth to his Executors all the Residue of his Estate Mortgages c. his Debts being paid and his Funeral expences discharged this was not a perfect Verdict the matter in Law referred to the Court being whether the Executors had an Estate in Fee by this Devise in as much as it is not found that the Debts were paid c. which is a Condition precedent so as the Executors cannot have it till the Debts paid and venire de novo granted Hill 10 Car. 1. B. R. Wilkinson's Case Vide 2 Leon. 152. Allen and Hill's Case Condition must be punctually found To this purpose it is laid down often in our Books as a Rule Finding the substance of the Issue is sufficient That if the Jury find the substance of the Issue it is sufficient as in Ejectment of a Manor If the Jury find there were no Freeholders and so it is no Manor in Law yet it being a Manor in Reputation and so the Tenants pass by the Leases therefore this Verdict is found for him who Pleads the Lease of the Manor for the substance is whether Bargain and Sale de modo irrotulat ' and not said in six Months its good in a Verdict but not in a Plea 3 Keb. 180. vide supra Corbet and Stones's Case If in Ejectment a Lease is pleaded of a Manor c. and the Issue is quod non dimisi◠manerium and the Jury give a Special Verdict That there were not any Freeholders but diverse Copyholders of the Manor and that it was known by the name of a Manor tho' it was not any Manor in Law for default of Freeholders and tho' this was alledged in pleading to be a Manor Manor in reputation and not in strict Law which pleading is made by learned Men and tho' this was in an Action adversary and not amicable yet for as much as the Issue is triable by the Lay-gents and in truth the Tenements in which c. pass by the Lease the Verdict is found for him that Pleads the Lease of the Manor for the substance of the Issue is whether it were demised or not Vines and Durham's Case cited 6 Rep. 77. in Sir Moyle Fincheb's Case 8. What one cannot plead shall be found by Verdict It is a Rule in Law in such Actions in which one cannot Plead there the matter to be pleaded shall be found by Verdict and this well but where the Party may Plead there the same is to be pleaded by him 1 Bulstr 166. The Jury may find a Warranty being give in Evidence for in Ejectment from Trespass and in Act on the Satute of 5 R. 2. cap. 7. A Warranty is not to be pleaded or other personal Action The nature of a Warranty and to have benefit thereby is to be by way of Voucher and Rebutter in a real Action and must Plead or lose the benefit of it but in personal Actions Collateral Warranty cannot be pleaded by way of Bar yet it may be given in Evidence to a Jury and the same is to be found by Verdict of the Jury Vid. ibid. Heywood and Smith 9. If any thing be omitted in the Declaration or if more is put in the Declaration than is found by the Jury if it makes a material variance between the Declaration and the Verdict the Action shall abate as if a Declaration in Ejectment be of a Lease of three Acres a Lease of a Moiety will not Warrant the Declaration But if the variance be by way of Surplus or Defect if it be not material in the extenuation of the Action or Damages Action will lye 10. Verdict by presumption The Jury may give a Verdict by presumption as to find Livery in respect of long Possession but if they find the matter Specially the Court will not adjudge this a Livery 1 Rolls Rep. 132. 11. A Verdict that finds part of the Issue and nothing for the residue is sufficient Vide postea 12. Fraud ought not to be presumed unless it be expresly found 2 Rep. 25. 10 Rep. 56. Cr. Car. 549. Crisp and Pratt Where and in what Cases Entry must be expresly found or not and of the force of the words prout lex postulat In Horewood and Holman's Case 2 Bulst 29. Lands are given to the use of a Man and his Wife
Ejectione Firme of 40 Acres of Land and recovers 30 and not the Residue Upon the Writ of Execution the Sheriff may deliver to him any viz. Three or more of the Acres in the name of the whole How the Sheriff must deliver it without setting out the Land recovered by Metes and Bounds tho' the Plaintiff had not recovered all the Acres whereof he brought the Action and whereof he had supposed the Defendant Tenant 1 Rolls Abr. 886. Now How the Sheriff is to esteem the Acres if a Writ of Execution go to the Sheriff to put a Man in Possession of 20 Acres of Land the Sheriff ought to give him 20 Acres in quantity according to the usage of the Country and not according to the usage of the Statute And if a Man recovers divers Messuages the Sheriff upon the Writ of Execution may make Execution of one in the name of all without going to every one in particular Where delivery of one Messuage in the name of all by the Sheriff is sufficient or not but if in such Case the Messuages be in the Possession of several Men he ought to go to every House particularly and of them to deliver Seisin and the delivery of Seisin of one in the name of all is not sufficient Floid and Bethel When many Acres are in demand and but part recovered and the Habere fac ' Possessionem comes to the Sheriff to deliver Execution of the Land recovered Where the Sheriff is to give all the Acres in particular it does not suffice there to give one Acre in the name of the whole recovered but he ought to set forth all the Acres particularly so that the Recover or may have benefit of the Judgment in certainty and the several profits without interruption Pal. Rep. 289. Molinex and Fulyam Sometime a Rule of Court is to give Possession If one recover Rent or Common How the Sheriff is to give Possession of Rent or Common a Writ Issues out to the Sheriff to put him in Possession and the Sheriff comes upon the Land and delivers him Seisin of the Rent or Common by parol this is well done 22 Ass 84. Hab. fac ' Possession ' Habere facias Possessionem good without return if execute is good without return But the Court may command the Sheriff to return it 1 Rolls Rep. 77. Note How Possession to be given of House Land of Rent The Sheriff in Cases where Land is recovered is to put the party in Possession and Seisin by a Twig Clod c. of an House by the Key c. of Rent by Corn or Grass growing on the Land out of which the Rent Issues 6 Rep. 52. Error was of a Judgment in the Kings-Bench in Ireland and Judgment for the Defendant was reversed and Judgment given for the Plaintiff quod recuperet terminum suum praed Habere fac Possessionem how awarded into Ireland It was moved how Habere fac ' possessionem should be awarded And it was resolved That there should be a Writ directed to the Chief Justice in Ireland to Reverse that Judgment commanding him to award Execution Cr. Car. 511. Mulcarry and Eyres In what Cases a new Habere fac ' Possessionem shall be granted or not and of the Sheriffs demeanor therein Nota pro Regula That after Habere fac ' possessionem executed be it by the Sheriff or voluntary delivery of Possession if the Party be turned out again by the Defendants means Where the Plaintiff shall have a new Habere facias Possessionem he may have a new Habere fac ' possessionem on motion in Court and an Attachment against him But if after quiet Possession others enter he must have a new Action or Restitution else by this means by practice the Plaintiff may turn out any of his after Lessees on Non-payment of Rent Had actual possession been by Agreement of the Parites or by Delivery of the Sheriff the Party can never after have a Habere fac ' possessionem But if there be agreement to deliver Possession in futuro if it be denied a new Writ may be had But after the year there must be a new motion for it in Court With this agrees Pearson and Tavernor's Case if one recovers in Ejectment upon which the Recoveror was put in Possession Per Habere fac ' possession and after the Defendant ousts him again if the Writ was never retorned because then it appears nor that the Plaintiff was ever out of Possession a new Writ shall be granted 1 Keb. 779. Ratliff and Tate 1 Keb. 785. Lovelace's Case 1 Rolls Rep. 353. Peirson and Tavernor's Case It is expresly resolved in Dame Molineux and Falgam's Case Palmer p. 289. If Haber e facias possessionem go to the Sheriff When the Writ of Hab. fac ' Possessionem is returned and filed the Court may not award a new Habere fac ' Possessionem and why and he returned Execution of the Writ and the Writ is filed there the Court may not award a new Habere fac ' possessionem but before they may because in the first case it appears the Party had Execution The Council prayed That the Defendant might file an Habere facere possessionem to the intent that no new one may be taken out or that that was taken out should not be filed after the return of it which the Court refused for the Party hath election to return it or not and may renew it at pleasure till an effectual Execution be had albeit the Party had Execution yet if there were any suddain expulsion of him he shall not be Estopt 2 Keb. 245. Underhil and Devereux Also New Habere facias Possessionem if the Sheriff give Seisin but of part he may have new Habere fac ' possessionem for the rest So in Stile 's Case 2 Browl. 216. Stiles upon a Judgment in Ejectione Firme was put into Possession by the Sheriff by Habere fac ' possessionem and after the Defendants enters again and the Writ was returned but not Filed It is at the election of the Sheriff whether he will return it or not Per Cur. He may not have a new Writ of Execution but is put to his new Action and the Filing of the Writ is not material for it is in the Election of the Sheriff if he will return it or not But if Execution had not been fully made as in case of persons hiding themselves in the upper Lofts and after the Sheriff was gone they outed those that were in Possession in this Case a new Writ of Execution was awarded But by the Chief Justice if the Sheriff put a Man in Possession and after the other which was put out enter forthwith in this Case the Court may award an Attachment against him for contempt against the Court and so an Attachment was awarded upon Affidavit in Gallop's Case 2 Brownl 253. To this purpose is Upton and Well's Case 1