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
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
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-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-Ejectment-Lease and such an Ejector was a good Ejector against whom an Action of Ejectione Firme may be brought to try the Title of the Land in Question But he that was to try a Title of Land in Ejectment ought not to have made an Ejector of his own against whom he might bring his Action or to consent or agree with one to come upon the Land let in the Ejectment-Lease with an Intent to make him an Ector and to bring his Action against him for by that means the Tenant in Possession of the Land was after put out of Possession by a Writ of Habere fac ' possessionem without any Notice given to him or his Lessor of the Suit but now the Law is otherwise and altered by the new way of Practice The new course in Ejectments For now it is not usual to seal any Lease of Ejectment at all in this Action but the Plaintiff that intends to try the Title feigns a Lease of Ejectment in his Declaration and an Ejector and draws a Declaration against his own Ejector who sends or delivers a Copy thereof to the Tenant in Possession giving him Notice to appear and defend his Title or else the Ejector will confess or suffer Judgment by Default But if the Tenant or the Lessor will defend the Title then it is usual for them to move the Court that they may be made Ejector to defend the Title that is the Tenant appears and consents to a Rule with the Plaintiff's Attorney to make himself Defendant in the room of the casual Ejector and this the Court will grant if he will confess Lease Entry and Ouster and at the Trial stand meerly upon the Title but if they do not at the Trial confess Lease Entry and Ouster then the Judgment shall be entred against the casual viz. the Plaintiff's own Ejector Note The Court said in Addison's Case Mod. Rep. 252. That they take no Notice judicially that the Lessor of the Plaintiff is the Party interested therefore they punish the Plaintiff if he release the Damages but in point of Costs they take notice of him But before I proceed further The old way of Sealing Leases of Ejectment I hope it will not be tedious a little to shew how the Law and Practice was taken when Ejectment-Leases were sealed and Entries to be duly made and Warrants of Attorney made to deliver the Lease upon the Land by a Corporation Baron and Feme c. especially considering that in Inferiour Courts the old way of actual sealing Leases is continued Winch 50. 1 Brow nl 129. Godb. 72. Earl of Kent's Case And first The way to execute a Lease to try a Title the Land being in many Men's Hands was to enter into one of the Parcels and leave one in that place and then he must go into another and leave one there and so of the rest and then after he had made the last Entry there he sealeth and delivereth the Lease and then those Men that were left there must come out of the Land But when a Title was to be tryed by Ejectment and a Lease to be executed by a Letter of Attorney the Course was That the Lessor do seal the Lease only and deliver it as an Escrow and the Letter of Attorney and deliver the Letter of Attorney but not the Lease for the Attorney must deliver that upon the Land And upon Ejectment brought of Land in Two Villages as of an House and Forty Acres of Land in A. and B. and a special Entry in the Land adjoyning to the House viz. the putting in of an Horse which was drove out
of the Land by the Defendant this was adjudged a good Entry for the Land in both the Villages per totam Curiam So of Lands in one County Palmer 402. Argoll and Cheney The Corporation of Mercers were seised of the Lands in Question By Corporation in the several Possessions of Two Men and being so seised made a Deed of Lease to the Plaintiff and a Letter of Attorney to deliver the Deed and the Possession The Attorney entred upon the Possession of one of the Men and there delivers the Deed and after enters in the Possession of the other and there doth deliver the Deed the Question was If it were good for the Land for which the second Delivery was because one Deed cannot have two Deliveries but the Court held it shall be intended the first Delivery was good for all and it shall not be intended but that the two Men had Possession only as Tenants at Will to the Corporation and then the Delivery of the Lease in one place is good for all and it shall not be intended they had an Estate for Years or Life except the contrary be shewed Baron and Feme joyn in a Lease by Indenture to B. By Baron and Feme rendring Rent for Years and make a Letter of Attorney to seal and deliver the Lease upon the Land which is done B. brought Ejectment and declares of a Demise made by the Baron and Feme and upon evidence to the Jury it was ruled per Cur ' That the Lease will not maintain the Declaration for a Feme covert cannot make a Letter of Attorney to deliver a Lease of her Land but the Warrant of Attorney is meerly void so that this only is a Lease of the Husband which is not maintained by the Declaration But Hopkins's Case in Cro. Car. 165. is against this where the Plaintiff declared of a Lease made by Baron and Feme On Not guilty it appeared on the Evidence that the Lease was sealed and subscribed by them both and a Letter of Attorney made by them to deliver it upon the Land Per Cur ' it 's a good Letter of Attorney by them both and the Lease well delivered and it is a Lease of them both during the Husband's Life Yelv. Wilson and Rich. 2 Brownl 248. Plomer's Case Cro. Car. 165. Hopkin's Case 2 Leon. 200. CHAP. V. Of the Rule of confessing Lease Entry and Ouster and Rules of Court relating thereunto Of Refusal to confess Lease Entry and Ouster and the Consequence Of how much the Defendant shall confess Lease Entry and Ouster In what Cases there must be an actual Entry and where it is supplied by confessing of Lease Entry and Ouster Rules concerning ones being made Defendant and of altering the Plaintiff and of the Ejectment-Lease HOW necessary the Knowledge of this Practice is to one who would manage his Client's Cause with Discretion and Success is sufficiently apparent and needs no further Recommendation It must be observed as was adjudged in the Mayor of Bristol's Case that there Ejectment in Inferiour Courts or in any other Inferiour Court they cannot make Rules to confess Lease Entry and Ouster as in the Courts of Westminster but they must actually seal the Lease as at Common Law And so it was in Sherman and Cook 's Case where it was moved That the Defendant who by Habeas Corpus had removed an Ejectment out of the Sheriff's Court might consent to a Rule of Court that he should confess Lease Entry and Ouster but the Court refused the Defendant not being bound by the Rule below because they cannot proceed by way of delivering Declarations to the Tenants in Possession but as at Common Law by actual Lease sealed Tryals below how And by Hyde all the Tryals below are tried in the casual Ejector's Name by him that is Tenant in Possession to avoid Charge P. 16 Car. 2. B. R. M. 16 Car. 2. B. R. Where the Freeholds are several Where the Freeholds are several the Plaintiff must sever his Action and one Defendant gives a Note of what is in his Possession the Plaintiff must sever his Action else the Defendant might lose his Costs for which on severance he would have legal Remedy And here is no Inconvenience because the Plaintiff may take Judgment against his own Ejector for the rest and the Defendant shall not confess Lease The Defendant not to confess Lease Entry and Ouster for any more than is in his own Possession Entry and Ouster of all but only of so much as is in his own Possession which is the only way to save his Costs And Medlicot's Case was where the Plaintiff's Title is one by the Demise of A. and the Defendant's several the Plaintiff offered to secure Costs severally to all but he was ordered by the Court to deliver several Declarations that none may defend for more than is in his own Possession else the Plaintiff might clap in an Acre of his own to save Costs and Agreements of Parties are no Guide to Rules but would make the Court but Arbitrary and this Rule is no hindrance of Tryals at Bar where many Defendants have but the same Title Tr. 21 Car. 2. B. R. Medlicot's Case In Ejectment the Ouster was confessed of a third part of a fourth part of a fifth part in five parts to be divided which by Hide is very inconvenient The Inconvenience of the new Course of leaving Declarations and crept in since the new Rule of leaving Declarations the Lands being in several places distinct from each other and may be held by several Titles which could never be had the old Course of actual Ejectment continued but on suggestion that the Title was but one and one Plaintiff and one Defendant it was admitted M. 15 Car. 2. B. R. Cole and Skinner In Ejectment where there are divers Defendants who are to confess Lease Entry and Ouster if one doth not appear at the Tryal the Plaintiff cannot proceed against the rest but must be nonsuited 1 Ventr In Ejectment the Plaintiff shewed Copy of four Acres In what case the Court will give leave to retract the general Confession of Lease Entry and Ouster to save Costs the Title being on Will or no Will but not being able to prove where particularly the Court gave leave to the Defendant that claimed by the Will to retract the general Confession of Lease Entry and Ouster as to this and to have Judgment against the casual Ejector M. 27 Car. B. R. Hide and Preston If the Defendant refuse to confess Lease Entry and Ouster the Rules are thus Where the Defendant was by Rule of Court at the Tryal which was to be at the Bar to appear and confess Lease Of the Defendant's Refusal to confess Lease Entry and Ouster Entry and Ouster and to stand upon the Title only yet at the Tryal he would not appear upon which the Plaintiff was Non-suit and yet Judgment was for the Plaintiff
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
is more cause to stay Judgment as to Damages and Costs because the Issue hath been fairly tried and the Defendants have confessed that the Plaintiff was in Possession and that the Defendants did eject him now if his Term was not commenced but his Possession tortious yet he is not to be turned out by a Stranger that hath no Title as the Defendants were the Jury having found against them and the Damages are for the entring upon our Possession and ejecting us But the Court said It could not be amended and Mr. Levet brought a new Trial and recovered Declarations when amendable or not In Ejectment where the Title is material Declaration amended after Plea without paying Costs the Plaintiff amended his Declaration after Plea but while all was in Paper in the date of his Action without Costs paying 1 Keb. 14. After Verdict and Judgment the Declaration cannot be amended After Verdict and Judgment no Amendment of a Declaration for that might attaint the Jury As in Ejectment of the Rectory of H. and other Tenants virtute cujus intravit in tenementa praedicta Verdict and Judgment de Rectoria Tenementis praedict ' Aliter in Judgment and Acts of the Court. it cannot be amended but on such Omission in Judgment or Acts of the Court it were amendable but not of the Declaration But in this case the Court conceived it well enough Tenements include a Rectory and that the word Tenements includes Rectory whether there be Glebe or not but not so of a Mannor Hill 25 and 26 Car. 2. Bale's Case If the Plaintiff in Ejectment declare of an House lying in two Parishes Declaration of an House lying in two Parishes and the House lies in one it 's good if the House do lie in either of the Parishes and do not lie in both of them yet the Declaration is good for there is certainty enough in it Pract. Reg. 110. It must be alledged in what Vill the Tenements are It must be alledged in what Vill the Tenements are the Plaintiff declares that P. C. by Indenture apud F. let unto him one House and twenty Acres of Land by the Name of all her Tenements in S. per Cur ' the Declaration is not good because it is not alledged in what Vill the Tenements are for the naming of the Vill in the Pernomen was not material and so Cr. El. 822. Gray and Chapman The Plaintiff declares of a Lease of one Messuage ten Acres of Land Where the Pernomen is not good twenty Acres of Meadow twenty of Pasture by the name of one Messuage ten Acres Prat. be it more or less after Verdict a Nil cap. per Billam was entred For upon the matter by the Plaintiff disclosed in his own Declaration he cannot have Execution of the Quantity found by the Jury for in the Lease there is not but ten Acres demised and these words in Judgment of Law cannot be extended to thirty or forty Acres and the rather because the Land demanded by the Declaration is of another nature than that mentioned in the Pernomen for this goes only to the Meadow and the Declaration is to the arable and Pasture Yelv. p. 166. In this Action it was moved in Arrest of Judgment That the Plaintiff had declared of two Demises viz. that J. S. demised ten Acres of Land to him and that J. N. had demised ten other Acres of Land to him Habend for the Term of five Years c. and that he entred into the Premisses demised to him by J. S. and J. N. in forma praedicta After Verdict upon Not guilty for the Plaintiff it was objected That in one of the Demises there is no certain Term or Estate for the Habend ' can only be referred to the Demise of J. S. for that begins a new Sentence but per Cur ' the Habend ' shall be a good Limitation of both Demises for five Years and when it is shewed that the Plaintiff entred into the Premisses demised to him in forma praedicta Forma praedict ' how construed that is an Averment that all was demised to him for that it is forma praedicta 2 Ventr 2. W. and M. In Ejectment the Plaintiff need not count of the demise of more Acres than the Acres out of which he was ejected Declaration need not be of more Acres than he was ejected and a demise may be pleaded of any Parcel without mentioning the entire as if one demise to me two Acres for Term of Years and I am ejected out of one Acre by a Stranger Now I shall have Ejectione Firme and count that one Acre was demised to me without any mention of the other Acre 1 Saunders p. 208. Where one declares on a fictitious Lease to A. One fictitious Lease to A. and another to B. the same term the last is not good for three years and within the same Term declares of another fictitious Lease to B. of the same Lands the last is not good for Trespass for the mean Profits must be brought in the first Lessee's Name ut dicitur As to the Form Ejectment was against two Declaration against two expulit and the Declaration was intraverat expulit and it was amended Yelv. 223. Vi armis are left out in the Declaration The Omission of vi armis in the Declaration Cro. El. 340. Griffith and Williams's Case saith it is but matter of Form and it is helped after a Verdict but in Cro. Jac. 36. and Yelv. 223. in Odington and Darby's Case where vi armis was left out and Error was brought in the Exchequer-Chamber it was not suffered to be amended but Judgment was reversed So Godb. 286. and so in Sykes and Coke's Case the Want of vi armis is not helped by a Verdict but in Error in B. R. if upon diminution it be well certified the Court will amend it Godb. 286. 2 Bulstr. 35. Cr. Jac. 306. Yelv. 223. Odington and Darby 1 Keb. 164. In B. R. the Transcript of Trespass and Ejectment was de Placito Transgressionis Ejectionis omitting Firme it was amended And in B. R. it would be amended in the Record it self before Removal 1 Keb. 106. Exception was taken in Godb. The Omission of Extratenet in the Declaration 60 71. because the Plaintiff did not say in his Declaration Extratenet but per tot ' Cur ' those Words were not material for if the Defendant do put out the Plaintiff it is sufficient to maintain the Action So if it be à possessione sua ejecit instead of à firma sua ejecit it 's good for ejecit à possessione inde inde hath relation to the Farm Godb. 60 71. In Ejectione Firme the Writ and Declaration were of two parts of certain Lands in H. and saith not in two parts in three parts to be divided and yet it was good as well in the Declaration as the Writ and this
Traverse is good and the Bar is naught The Defendant in his Bar ought to have made his Distinction and every Plea which goes to the Jurisdiction of the Court ought to be taken most strong against him that pleads it and the Traverse here ought to be to the Town and not to the ubi which was idle for the Law said as much and we do not imagine any Fractions of Towns Winch. p. 113. Austin and Beadle Cro. Jac. 692. mesme Case Hutton p. 74. mesme Case Note He who would demand Conisance of this Plea ought to shew his Warrant of Attorney in Latin Sid. 103. in the Bishop of Ely's Case The Attorney General in Hales and Jull's Case prayed Allowance of the Plea Cinque-Ports that the Lands in the Ejectment were within the Cinque-Ports which the Court granted there being no Imparlance General or Special both which affirm the Jurisdiction of the Court and at the Venire fac ' the Plaintiff may suggest the Lands to be within the Cinque-Ports and have it of Places adjacent within the County 1 Keb. 65 Sir Edward Turner in Ejectment 〈◊〉 Conisance not allowable on Suggestion but it must be averred on Record ore tenus shewing his Warrant of Attorney demanded Conisance for the Bishop of Ely per Cur ' it's not allowable on Suggestion which is Cinque-Ports Ancient Demesne c. It must be averred on Record for tho' the Court takes notice that Ely is a Royal Franchise yet this must be so averred or pleaded and may be after Imparlance It must be averred or pleaded and may be after Imparlance in Ejectment when any third Person is concerned since the new way of Ejectment used in Green and Simpson's Case but Siderfin is contra that it cannot be pleaded after Imparlance 1 Keb. 946. 948. Sid. 103. The Defendant prayed to be admitted to plead in Abatement Where Conisance of Plea not allowed of in Ejectment that the Lands in the Ejectment are within the Cinque-Ports and the rather for that he was made Defendant by the Rule of Court with a special Imparparlance with a salvis omnibus c. Per Cur ' let him plead in Chief unless in Ancient Demesne no special Plea has been allowed because the Lord would be prejudiced in a Trial at Common Law 1 Keb. 725. Hale and Uppington In Hall and Hugh's Case in Ejectment of Lands Part within and part without the Cinque-Ports and demur part within and part without the five Ports the Defendant after Imparlance pleads in Abatement That part of the Lands are in the Five Ports and so prays Judgment si Curia cognoscere velit c. The Plaintiff demurs because it does not appear but that the Demise was out and it 's transitory and may be laid any where tho' the Lease was actually sealed in another Place or County and the Defendant may plead Non dimisit Where Non dimisit pleadeded in Ejectment as well as Not guilty The Demise in this Case was laid at Maidstone per Twisden this being an inferiour Court they cannot try the Demise which is issuable Why the new Rule of confessing Lease was introduced and the great Mischief that came in want of Proof of the Demise was the cause of introducing the new Rule In this Plea it was said That the Lands were in F. parcel of the Cinque-Ports where time out of mind the Writ of our Lord the King runs not and that they of F. have always tried c. this is ill Prescription must be to the five Ports and not to F. only for the Prescription should have been annexed to the Five Ports generally and not to F. only and the Court ordered him to plead in Chief and to confess Lease Entry and Ouster or else that the Plaintiff take Judgment against his own Ejector 2 Keb. 69 79. 1. Whether Ancient Demesne pleaded be a good Plea 2. Whether it may be pleaded after Imparlance In Cro. Car. 9. it was a Question Whether Ancient Demesne may be pleaded after Imparlance Ancient Demesne a good Plea in Ejectment and why It 's resolved That Ancient Demesne is a good Plea in Ejectione Firme and in Replevin tho' it was doubted in our Books formerly but that is fully setled in several Reports In Alden's Case 5 Rep. the Defendant pleads That the Tenements in which c. were parcel of the Manor of O. in Com. S. Quod quidem manerium est de antiquo Dominico c. and demands Judgment si Curia hic vult cognoscere c. The Plaintiff demurs and per Cur ' it is a good Plea 1. Because it 's the common Intendment that the Right and Title of the Land will come in Debate in this Action 2. In this Action the Plaintiff shall recover the Possession of the Land and have Execution by habere fac ' possessionem and this Action savours of the Realty So in Pymmock and Feilder's Case where the Pleading was nice the Defendant pleads that the Lands were Ancient Demesne and pleadable by a Writ of Right Close c. The Plaintiff shews that they were Copyhold Lands Parcel of the Manor and entitles himself by Lease under the Copyholder and traverseth That they were impleadable by a Writ of Right Close and it was thereupon demurred 1. Because Copyhold-Land parcel of a Manor of Ancient Demesne should be pleadable there and not at Common Law 2. Because this Traverse that they were impleadable is but the Consequence of Ancient Demesne Per Cur ' the Copyhold-Lands are as the Demesnes of the Manor and are the Lord 's Freehold and therefore not impleadable but in the Lord's Court and the Traverse is well enough taken 1 Bulstr 108. Cr. El. 826. 5 Rep. 105. Alden's Case Stiles 90. Cro. Jac. 559. Pymmock and Feilder Now a Lease for years is intended to be taken real in a Recovery and because a Lease for years intended to be recovered in Ejectione Firme it is a good Plea to say it is Ancient Demesne yet a Lease for years is but personal in Quality 2 Rolls Rep. 181. Banister and Eyres The Defendant imparles in Ejectione Firme Whether Ancient Demesne is pleadable after Impalance and after pleads that the Land is Ancient Demesne c. unde intendit quod Curia non vuit cognoscere c. The Plaintiff demurs Per Cur ' this Plea is pleadable after Imparlance because if Judgment be given here the Lord will reverâ—e it by Disceit and the Judgment will be avoidable and the diversity is true Regula A Man may plead that which is in Bar after an Imparlance but not that which goes to the Writ and this holds in all Cases but Ancient Demesne 2. The last Conclusion is Surplusage Conclusion of Plea but if he had begun his his Plea Actio non it had been ill notwithstanding the Conclusion ut supra But the Defendant waved his Demurrer without Costs and pleaded to Issue if Frank-fee
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
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
THE LAW OF EJECTMENTS OR A TREATISE SHEWING The Nature of EJECTIONE FIRME the Difference between it and Trespass and how to be brought or removed where the Lands lie in Franchises In what Cases this Action lies or not Of the Old Way of Sealing Leases and of the New Practice Of Confessing Lease Entry and Ouster Of what things Ejectione Firme lies or not Of Declarations in this Action and what Special Pleadings are now in use Of Venues Issue Trial. As also Who are good Witnesses or not in the Trial on Ejectment and what shall be allowed good Evidence or not either as to Records or Matters in Fait Where Bills Answers and Depositions shall be read on a Trial or not Together with The Learning of Special Verdicts at large relating to Titles of Land and Estates in several Rules and of Judgments with their several Forms of Entries in Special Cases and of Habere facias possessionem how to be executed and in what Cases a new Habere fac ' possessionem shall be granted And lastly of Erroneous Judgments and Writs of Error and several other Matters all relating to Actions of Ejectments Very necessary for all Lawyers Attornies and other Persons especially at the Assises c. LONDON Printed for Iohn Deeve at Bernards-Inn Gate in Holbourn 1700. THE PREFACE TO THE READER UPon the first View of the Title of this Treatise I doubt not but many Persons will slight it being upon a Topick well known and understood as they imagine by even every Pretender to the Law There 's not the least Sollicitor or Attorney in any Nook of Cornwall or Corner of Cumberland but thinks he is privy to the whole Learning of Ejectments And yet if they would take the Pains to peruse the ensuing Sheets they doubtless may be of another Opinion and will find very useful and proper Matter relating to an Action which concerns the greatest Titles in the Kingdom and has made so great a Noise at the Barr and in the Circuits for Sixty Years last past Besides if there happen any material Mistake in this Action the Remedy is very chargeable I remember Mr. Levett's Case of the Inner-Temple the Argument whereof made by a very Ingenious Professor of the Law I have herein inserted The Record was an Issue of Trinity Term 1696. and the Demise is laid the 10th of April 1697. Habendum from the 25th day of March then last past whereas the Demise should have been laid the 10th of April 1696. And tho' Mr. LeveTt had a Verdict yet he could not have Judgment but was forced to a new Trial at Bar. And many more such Instances might be given I shall not dare to deliver my Opinion concerning the Change of Real Actions into Ejectione Firme but I know many Grave Lawyers have grumbled at the Inconveniencies of a Man's being too obnoxious to be trickt out of Possession However this we must all allow That since the said Alteration the Common Law hath lost a great Part of the Beauty and Nicety of its Pleading I have been large under two of the ensuing Titles I mean that of Evidence and the other of Special Verdicts Who shall be allowed as good Witnesses or not and what shall be lookt upon as sufficient Evidence both as to Matter of Record or Matter en Fait in this Action is of great Vse to be understood and the Cases that lay disperst in our Books for that purpose I have reduced to some Method And as for the right and exact drawing of Special Verdicts we all own it to be an undeniable Argument of a good Vnderstanding in the Law and of very great Consequence especially those which concern Title of Lands and Estates As for the Errata's of the Printer the Judicious Reader will find that they will not much interrupt the Sense and as for my own I humbly beg Pardon THE CONTENTS OF THE CHAPTERS CHAP. I. THE Nature of the Action of Ejectione Firme and the Reason of the change of Real Actions into Ejectments with the Lord Chancellor Ellesmore's Opinion thereon The Difference between Actions of Trespass and Ejectment in seven Diversities The Difference between Ejectione Firme and Quare ejecit infra terminum In what Court this Action to be brought or not Ejectments how to be brought in respect of the Place where the Lands lie Where to be tried Of Removal by Procedendo into inferiour Courts CHAP. II. Who shall have Ejectione Firme and in what Cases this Action lies or not in respect of Possession in respect of Entry congeable in respect of Exility of Estate By Lessee of Copyholder and how and whether before Admittance and the manner of declaring Of Ejectment by Executors by Infant by Lessee of a Simonist On Elegit On undue Extent and in case of holding over By Intruder by the King's Lessee by a Person Outlawed by Lessee of Bail on Extent and on Judgment against the Principal by Issue in Tail liable to a Statute who comes not in and pleads to the Sc ' fac ' on Entry of the Grantee of Rent with Proviso for Retainer till Satisfaction of Arrears by Cesty que Trust by Vendee of Commissioners of Bankrupts CHAP. III. Of Process in Ejectione Firme Of the Original What Mistakes in the Original are Error after a Verdict or not Of a vicious Original Of the want of an Original Of an Original taken out before the Cause of Action Of Amendments of Originals Where Amendment shall be by the Paper-Book Of the Retorn by Stat. 13 Car. 2. c. 11. Of Appearance Infant how to appear sue or defend The true Difference between Guardian and Prochein Amy. Of want of Pledges Of Bail Of Stat. 13 Car. 2. c. 2. Of Bail on Writ of Error VVhen common Bail to be filed Imparlance CHAP. IV. Against whom Ejectione Firme lies or not Of the casual Ejector Of the old way of Sealing Leases of Ejectment and in what Cases now to be used And of the new way of practise CHAP. V. Of the Rule of confessing Lease Entry and Ouster Whether such Rules may be made in inferiour Courts Rules of Court relating to confessing Lease Entry and Ouster Of Refusal to confess Lease Entry and Ouster and the Consequence Of how much the Defendant shall confess Lease Entry and Ouster In what Cases there must be an actual Entry and where it is supplied by confessing of Lease Entry and Ouster Rules concerning ones being made Defendant and of altering the Plaintiff of enlarging the Ejectment Lease CHAP. VI. Of what things an Ejectione Firme may be brought and of what not General Rules of Declarations in Ejectments Of Variance between the Issue-Roll and the Imparlance-Roll Of Entry and Ejectment supposed before the Commencement of the Lease Virtute cujus He entred how expounded Uncertainty in the Limitation of the Commencement and no Day of the Date shewed Et postea how expounded Mr. Levets of the Temple's Case Argued about amendment of a Declaration Declaration by Coheirs by Tenants
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
much there was in Land and how much in Pasture and the Judgment was reversed Cro. Car. 573. Martin and Nichols Observe Acres according to Statute-measure In Ejectione Firme or a Praecipe of 100 Acres this is according to Statute-measure but if one bargain and sell 100 Acres of Land to another that shall not be according to the Statute-measure but after the usual Account in the Country in Andrews Case cited in Ewer and Heydon's Case The Declaration was De duabus acris fundi Anglice Hop-ground That he was ejected è duabus Acris fundi Anglicè Hop-ground Per Rolls it is good in a Grant but not in Declarations and the Anglice here does not help it for the Anglicè is not to interpret a Latin Name by which it is called Stiles Rep. 202 203. Meers and French Ejectment lies de decem Acris Pisarum for in common Acceptance Ten Acres of Pease De decem acris Pisarum and Ten Acres of Land sowed with Pease is all one 1 Brownl 150. Ejectment of Three hundred Acres of Waste De 300 Acres of Waste inter alia c. per Cur ' Waste is uncertain and may comprehend Land of any Quality and the Sheriff will be at a Loss what Land to deliver and after the Plaintiff released the Waste and Damages and took Judgment of the Residue Hardr. 57. Hancock and Prynn Ejectment lies de prima Tonsura of the first Crop De prima Tensura Cro. Car. 362. Ward Ejectment lies of a Cole-mine De Cole-mine for it is a Profit well known Ejectment of Land and a Colepit in the same Land ruled to be good because it is in a personal Action aliter in a Real Action because it is his petitum 1 Rolls Rep. 55. Cro. Jac. 21. Harbotle and Placock It lies of a Boillary of Salt-water De un Boillary of Salt Siderf 161. Ejectment lies not de rivulo seu aquae cursu De Râ—vulo aquae cursu therefore Godbolt p. 157. n. 213. is not Law nor a Precipe lies of it and Livery and Seisin cannot be made of it for non moratur non est firma but is always fluctuant and Execution by habere fac ' possessionem cannot be made of it but the Action ought to be of so many Acres of Land aqua coopert but if the Land under the River or Place appertains not to the Plaintiff but the River only then upon Disturbance his Remedy is only by Action on the case upon any Diversion of it and not aliter Yelv. 143. Challoner and Thomas M. 6 Jac. Challoner and Moor. Cro. Car. 492. Herbert and Llanghlyn's Case Ejectione firme lies not de Profit apprender De Profit apprender and so not of a Common or Rent nor of a Pischary it must be terra aqua cooperta in such a River tho' the Court seemed doubtful of it in Mâ—llineux's Case which was Ejectment of an House and Lands in T. nec non de Libera Pischaria infra Rivulum de Trent in which Action Damages were entirely given De Libera Pischaria but to avoid the Question the Plaintiff released his Damages totally and his Action quoad the Pischary and had Judgment for the Residue Cro. Jac. 146. Molineux Ejectment was brought in Ireland of forty Messuages De 100 Acres of Bogg Five hundred Acres of Land an Hundred Acres of Bogg in the Villages and Territories of D. S. and V. Bogg is an usual Word and well known there and if it were not the Plaintiff may release his Demand as to that and have Judgment for the Residue Another Exception was because it was in Villis Territoriis In villis territeriis but per Cur ' it 's well enough and of the same Sense and if not it is but Surplusage as to the Territories De 50 Acres of Mountain in Ireland but Ejectment of 500 Acres of Mountain in Ireland is ill for it is not of one Nature but several as Turfs Pasture but a Precipe is good de Saliceto de Stagno de Dominio by the general Notice the Country hath of them where the Lands lie and of their Quality On Ejectment in Ireland Error was brought in B. R. here because he brought Ejectment of 40 Acres of Wood De 40 Acris bosci 40 Acris subbosci and 20 Acres of Under-wood and so one thing twice demanded because Underwood is a Species of Wood sed non allocatur because this does not appear to the Court and this shall not be alledged for Error but ought to be taken in Abatement of the Writ Cro. Car. 512. Mulcarry and Eyres 2 Roll. Rep. 166 189. Macdonnel's Case 2 Rolls Rep. 487 482. Warren and Wakeley Ejectione Firme be omnibus Decimis is not good De omnibus Decimis De quadam portione D. 〈◊〉 it lies not de quadam portione Decimarum generally but de quadam portione granorum foeni is good the Nature ought to to be shewed though not the Certainty and the Ejectment was supposed in May when there is not any Tythes and so not good It may be that all the Tything consists in Modo decimandi for Payment of an yearly Sum in Satisfaction of Tythes whereof no Ejectione Firme lies It was a Question in Preist and Wood's Case Cr. Car. 301. Whether an Ejectione Firme lay of Tythes only it may be of a Rectory or such a Chapel and of the Tythes thereunto belonging whereof an Habere fac ' possessionem may be but it was adjudged pro Querente The Ejectment was supposed in taking so many Loads of Wheat and Barley being severed from the Nine Parts 1 Roll. Rep. 68. cited in Worral and Harper's Case 11 Rep. 25. Harper's Case Cro. Car. 301. Preist and Wood. Ejectment of so many Acres Jampnorum Bruerue De 20 Acris Jampnorum Bruere and does not express how many of each yet good Mod. Rep. 9. Fitzgerard's Case Ejectione Firme de una virgata terrae lies not De una Virgata terrae and so it was adjudged in the Exchequer-Chamber Error was brought of a Judgment in C. B. in Ejectment de Virgata terre on general Verdict which is ill being uncertain in every County but the Plaintiff below might have Released Damages as to that but now it is too late Cro. Eliz. 339. Jordan's Case 3 Keb. 450. Hall and Johnson Ejectione Firme lies not de Pannagio De Pannagio Q. de Parco Sid. 417. It lies de Herbagio De Herbagio 2 Rolls Rep. 481 482. Ejectione Firme was brought for Entry into a Messuage sive Tenementum and four Acres of Land to the same belonging Per Cur ' the Declaration is uncertain but it was said as to the four Acres it was certain enough and the Words to the same belonging are meerly void and the Plaintiff released Damages and had Judgment 3 Cro. 228. Wood and Pain Cr. El. 186. mesme Case
Ejectment lies not of a Free Warren De libera Warrenna 1 Keb. 500. Count of the Moiety of two Acres of Land De Moiety of 20 Acres of Land is well enough and Trespass lies against the Sheriff if he does not execute on the right places 1 Keb. 278. Lufton's Case Per Cur ' Ejectment lies de uno Stabulo De uno stabulo or where-ever the thing is so certain that the Sheriff may do Execution 1 Keb. 236. Whitacre's Case Separalis Pischaria usque ad filum aquae cannot be counted upon Separalis Pischaria usque ad C. but per Windham such Evidence might be given of such Pischary by Metes and Bounds 1 Keb. 290. Sir Chr. Griese and Adams Ejectment lies de Capella De Capella per Windham 1 Keb. 438. Ejectment was laid on Demise at T. Of an House and Land in quodam campo juxta le Castle-hill of an House and Land in quodam campo juxta le Castle-hill which per Cur ' is ill on motion in Arrest of Judgment for no Execution can ever be directed to any Sheriff and it must appear where the Land demised lieth 1 Keb. 777. Took and Atho Ejectment of Ten Hides of Land is good a Hide of Land is the same as Carucat ' De 10 Hides of Land Carucat terrae what which is as much as a Plow which is usually intended to have six Horses may manure in a year and being 100 or 120 Acres in Northampton-shire 1 Keb. 877. Wright and Sherrard Ejectment de 7 Messuagiis sive Tenementis is ill after a general Verdict De Messuag Tenement and it 's on Demurrer this might have been helped by taking Verdict of either So it is when the Ejectment is de Messuagio Tenement ' it's ill after General Verdict 2 Keb. 80 82. Burbury and Yeomans Ejectment does not lie of a Light house Lighthouse but Action on the Case 2 Keb. 114. Ejectment of the Pannage of a Park is ill 2 Keb. 460. Ejectment of a Close of Meadow doubted in Steel and Stanly's Case De Close of Meadow M. 22 Car. 2. B. C. Ejectment of 600 Acres of Fen-Marsh 600 Acres of Fen-Marsh Meadow arable Lâ—â—d Meadow arable Lands Twisden asked the Plaintiff whereof they would take their Verdict if they would have it of Marsh and as such give Execution of the Fens in Question 2 Keb. 23. Downham and Walden Ejectment de 20 Villis Terris in Ireland De 20 villis terris in Ireland the Court conceived it wellenough on 1 Cro. 512. the Original Judgment being in C. B. and affirmed in B. R. there 2 Keb. 745. Ejectment of Two Mills not saying what good 2 Keb. 875. Ejectment of a Messuage includes a Garden De messuagio includes a Garden 3 Keb. 44. Ejectment de virgat ' terrae ill on General Verdict De virgata terrae being uncertain in every County but the Plaintiff below might have Released Damages as to that but now it is too late This was in 〈◊〉 of a Judgment in B. R. 3 Keb. 450. Hall and Johnson Ejectment of Moor or Meadow Moor or Meadow is ill 3 Keb. 529. Ejectment lies not of Common or Pischary alone De Common and Pisdhary yet being after Verdict it should be intended appurtenant and so well enough This was in Ejectment of a House and 40 Acres of Pasture Keb. 738. Barton's Case Now as to Declarations in this Action I shall lay down some General Rules 1. The Plaintiff must declare on one Title only and therefore in the Case of the Lord Chandois and Pitts the Count was of three several Leases of the whole to the Defendant the Council prayed that one B. may be made Defendant and that the Plaintiff might elect to proceed on one only Title which the Court granted and said Altho ' the Party may declare on several Leases one at and another from such a Day yet cannot declare on several Lessors And the Court ordered the Plaintiff to elect one Title only Trin. 22 Car. 2. B. R. 2. In Ejectione Firme of a Close the Quantity of them and their Nature ought to be expressed viz. Land Meadow or Pasture It s a sure Rule the Certainty of the Land ought to be described and the Quality 11 Rep. 55. Savill's Case 3. In Ejectione firme Surplsage in the Count is not vitious Dyer 304 305. 4. If the Entry and Ejectment be supposed in the Declaration to be before the Commencement of the Lease the Declaration is void Vide Postea 5. It must be alledged in what Vill the Tenements are Vide infra 6. The Plaintiff must make his Title truly Vide infra p. 72. b. The Entry to deliver Declarations in Ejectment is not sufficient to avoid a Fine without express Authority to enter to avoid the Fine so was the Case reported 2 Saunders 319. Tenant for Life levies a Fine sur Conisance de droit come ceo with Proclamation and he in Reversion for Life within five Years after the Death of Tenant for Life directs one to deliver a Declaration in Ejectment to the Tenant in Possession this shall not amount to an Entry to avoid the Fine tho' this was the Declaration which contained the Lease upon which the Ejectment was brought Keb. 555. Clerk and Pymell M. 21 Car. 2. B. R. DECLARATION In Ejectment in B. C. the Plaintiff there declares in the first Declaration Variance between the Imparlance-Roll and Issue Roll as to the Commencement of the Lease which is called the Imparlance-Roll of a Lease made the 20th of September for five years then next ensuing and after Imparlance upon the Issue-Roll for there the Plaintiff useth to declare again after Imparlance the Plaintiff declares of a Lease made the 30th of January the same year Habend ' for five years from the 20th of December before and upon Issue found pro Quer ' per Cur ' it's erroneous for he declared upon one Lease and went to Issue upon another for when a Lease is made the 30th of January Habend from the 20th of December before this is but a Lease in Interest till the 30th of January and not before and only in Computation from the 20th of December The Imparlance-Roll is the material Declaration and by the Prothonotaries the Imparlance-Roll is the material Declaration and if Variance be from it in matter of Substance this is not good nor amendable tho' it was urged That the last Declaration shall be taken as a new Declaration without any Reference to the other and then it shall be good 1 Roll. Rep. 448. Millward and Watts 3 Bulstr 229. Millward and Watts Cr. Jac. 415. mesme Case But in Merril and Smith's Case Cro. Jac. 311. the first Declaration was That T. S. 25th of March 6. Jan. let to the Plaintiff the Land c. for seven years by Vertue whereof the Plaintiff entred and was possessed until the Defendeant postea scil
the Tenant may appear by his Attorney and consent to a Rule with the Plaintiff's Attorney to make himself Defendant in the room of the casual Ejector and to confess Lease Entry and Ouster and at the Trial to stand upon the Title only or in default thereof Judgment will be entred against the casual Ejector If the Tenant in Possession do not appear in due time and enter into a Rule as is aforesaid then upon Affidavit made of the Service thereof and notice given him to appear the Court upon Motion will order Judgment to be entred against the casual Ejector for if the Defendant plead nothing to this Action No Judgment against the casual Ejector but by motion of the Court. but let it pass by Nihil dicit the Judgment cannot be had upon a common Rule as in Actions of Debt and such like but by Motion of the Court because it is to alter Possession After the Declaration delivered What is to be done after the Declaration delivered the Person whose Interest is concerned ought to retain an Attorney who is to give his Client's Name to the Plaintiff's Attorney that so he may be made Defendant instead of the casual Ejector and then a Rule is to be entred by Consent as follows Robinson Pas 15 Car. 2. Regis D. versus M. in Ejectione Firme de terris tenementis in H. in Com' M. ex dimissione E. P. ORdinat est p Curiam ex assensu I. H. Attornat querÌ„ I. R. Attornat ê“ T. W. de W. in Com E. pÌ„dict Yeom quod idem T. admittatur defendens qui indilate comparebit p Attorn suum pÌ„dict recipiet narrationem plitabit adinde generalem exitum hoc Termino ad TriacÌ„onem superinde habend idem T. comparebit in ê“pria persona sua aut p ejus Concilium vel Attornat Et cognoscet dimissionem intrationem actualem expulsionem vel quod in defectu inde intretur judicium versus Def. G. M. casualem Ejectorem sed parcatur ulterior prosecutio versus cum quousque pÌ„dict T. in aliquo pÌ„missorum defalt fccerit Et ex consimili assensu ulterius ordinat est per Cur quod pÌ„dict T. nullum capiet advantagium versus querent ê“ ejus non ê“secutione super Triatione occasionat p hujusmodi defaltam sed quod pÌ„dict T. solvet querenti custagia ProthonotarÌ„ ê“ inde taxand Et ulterius ordinat est quod dimissor querentis sit onerabilis cum solutione custagiorum defendent per Cur aliquo modo taxand vel adjudicand The like in B. R. Die Lune prox ' post Crast ' Ascensionis Domini 23 Car. 2. Regis ORdinatum est ex assensu ambarum partium eorum Attornat qd W. H. qui clamat titulum Messuagio in questione fiat Def. compebit inldiate ad Sect querÌ„ impon commune Ballium recipiet narrationem in plito Transgressionis Ejectionis Firme plitabit adinde non culp super triatione exitus cogn dimission intration actualem Ejectionem stabit super titulum tantum alit judicium intretur per defaltÌ„ versus modo querent Et si pdict W. H. super triatione exitus illius non cognose dimission intracÌ„on actual eject ' p qd quer ê“sequi ulterius non potest quod tunc nuâ— misÌ„ sive custagÌ„ super tali non prosÌ„ adjudicentur Et ulterius ordinat est qd si veredict redditum fuerit pÌ„dict W. H. vel predict quet non prosÌ„ foret ê“pter aliquam aliam causam ê“ qm non cognost dimission intracÌ„on actualem ejectionem pÌ„dicy quod tunc le Aessor quet solveret talia custagÌ„ W. H. Def. qualia p Cut adjudicata fuerint p CurÌ„ ' An Affidavit in Ejectment to move for Judgment against the casual Ejector Inter A. S. Quer ' B. C. Def. ' de Terris Tenementis in R. in Com' H. ex dimissione J. H. T. S. maketh Oath That he this Deponent on Thursday the day of last past did deliver unto J. D. Tenant in Possession of the Premisses in question a true Copy of the annexed Declaration with an Indorsement or Superscription thereupon to this effect viz. J. D. You may perceive by this Declaration that I am sued as Casual Ejector for the Land and Tenements within specified in your Possession whereunto I claim no Title I do therefore hereby give you timely Notice that unless you appear and defend your Title this next Term I shall suffer Judgment to pass against me by Default whereby you will be turned out of Possession Your Loving Friend C. R. Dec. 12. 1679. Which said Indorsement or Superscription this Deponent did then read to the said T. D. and acquainted him with the Contents thereof Note It is good Service to deliver the Copy to the Wife or to the menial Servant of the Tenant in Possession If to the Wife thus viz. I did deliver to Ann the Wife or if to the Servant to R. W. the hired Servant of J. D. and desired her to acquaint her Husband therewith or him his Master therewith If there be two Tenants then say I did deliver one Copy of the annexed Declaration to A. R. Tenant in Possession of Parcel of the Premisses in question and another Copy thereof to C. D. Tenant in Possession of the Residue of the Premisses in question upon which said several Copies was subscribed or indorsed to this effect c. Which said several Indorsements he the said Deponent did read to the said several Tenants c. CHAP. VIII Of Pleadings in Ejectment What shall be a good Plea in Abatement in this Action Entry of the Plaintiff haenging the Writ Entry after Verdict and before the day in Bank After Imparlance no Pleading in Abatement and why Abate because he 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 Five Ports to be made Ancient Demesne a good Plea in Ejectment 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 Assises is reasonable the Consequence of a Demurrer to this Plea Release from one of the Plaintiffs in Writ of Error whom it shall bar Accord with Satisfaction pleaded in Ejectment Aid prier and why the Defendant shall not have Aid of the King aliter of a common Person But 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 THE General Issue in Ejectione Firme is now setled by Rule of Court to be Not guilty tho' formerly the Defendant might have pleaded Non ejecit or any other Title and therefore tho' this Chap. 2. may seem needless because by
but not for another and new Ejectment Recovery in one Ejectione Firme a Bar in another And in Godbolt's Rep. Case 128. in Trespass the Defendant pleaded that at another time before the Trespass he did recover against the same Plaintiff in Ejectione Firme and demanded Judgment Per Cur ' it is a good Plea prima facie and that the Possession is bound by it for otherwise the Recovery should be vain and ineffectual And by Anderson If two claim one and the same Land by several Leases and the one recovereth in Ejectione Firme against the other that if afterwards the other bringeth an Ejectione Firme of the same Land the first Recovery shall be a Bar against him Per Rhodes a Recovery in an ad terminum qui praeteriit shall bind the Possession Godb. p. 109. no. 128. 3 Leon. 194. In Trespass for breaking his Close the Defendant pleads before this he had brought Ejectione Firme against the now Plaintiff and recovered and had Execution Judgment si actio Per Cur ' in 1 Leon. 313. Kempton and Cooper's Case and 3 Leon 194. the same is a good Bar and the Conclusion of the Plea is also good Judgment si actio without relying on the Estoppel and by two Justices it is no Estoppel for the Conclusion shall be Judgment si actio and not si serra respond ' and it was well pleaded For as by Recovery in Assise the Freehold is bound so by Recovery in Ejectione Firme the Possession is bound And by Anderson a Recovery in one Ejectione Firme is a Bar in another especially if the party relieth upon the Estoppel and altho' it be in an Action personal and in the nature of a Trespass yet the Judgment is good habeat possessionem termini sui during which Term the Judgment is in force and it 's no reason he should be ousted by him against whom he recovered for so Suits would be infinite but this grave Advice is now laid aside 4 Leon. 77. Spring and Lawson Note In Ejectione Firme against two Defendants one confesseth the Action and the other pleads in Bar Non Culp ' per Cur ' tho in Trespass against two 2 Defendants one confesseth the other pleads in Bar he cannot leave the one and proceed against and the one makes Default and the other confesseth the Action he may well relinquish his Suit against him who makes Default and proceed against the other which confesseth or pleads in Bar because this Suit is only in point of Damages but not so in Ejectment he cannot relinquish his Suite against one and proceed against the other for if so any Man may be tricked 2 Bulstr 113. Expiration of the Term in Ejectione Firme is no Plea Latch 106. Upon a Trial at Bar between Odil and Terril a Juror was challenged for that he said to one of the parties Provide you to pay for if I am sworn I will give the Verdict against you And that this is true the Parties to whom the Words were spoken did offer to depose the same and the Question was if he should be suffered to swear this he being one of the parties and he was allowed by the Court to be sworn to prove the Challenge good the other The Juror had bought Land of the Eessor and for this Cause the Triers found him not to be indifferent and so he was withdrawn Another Juror was challenged in this case for that he had bought Land of one of the parties in the Suit viz. of the Lessor and that the Lessor did owe to this Juror 10 l. and notwithstanding this Challenge the Triers found him indifferent otherwise per Cur ' if the Juror had owed Money to one of the parties 1 Bulst 20 21. Odil and Terril CHAB IX Of Challenge What is Principal or not Of Elisors Of Venue Where the Parish and Vill shall be intended all one Where it shall not be de Corpore Comitatus Where the Venire fac ' is amendable Venire fac ' to the Coroners because the Sheriff is Cousin to one of the Defendants A Venire de Forrest Venire de Novo for Baron and Feme BY Coke in Guest and Bridgman's Case Cousin to the Lessor it 's not a principal Challenge that the Sheriff is Cousin to the Lessor in Ejectment for the Lessor cannot hinder the Action of the Lessee this is not Law 1 Rolls Rep. 328. 2 Rolls Rep. 181. Banister's Case Venire fac ' awarded to the Coroners upon Surmise that the Lessor was Servant to the Sheriff Lessor Servant to the Sheriff Q. if it be a principal Challenge if it be no principal Challenge then is not the Writ well awarded and is not aided per Stat. 32 H. 8. Cro. Jac. p. 21. Harebotle and Placock Challenge to the Sheriff The Sheriff Cousin to the Plaintiff and a Venire fac ' prayed to the Coroners because the Sheriff is Cousin to the Plaintiff and shews how and because the Defendant did not deny it a Venire fac ' was awarded to the Coroners and Judgment was arrested because it was not a principal Challenge and a Venire de Novo awarded to the Sheriff 1 Brownl 130. Cradock and Jones It is not any principal Challenge to a Juror in Ejectione Firme That he had married the Cousin-german of A. That a Juror had married the Cousin-german of A. who was the Wife of R. from whom is descended H. from whom is descended B. who have the Reversion of the Land in question after the Death of his Mother who is to had an Estate for Life this is not any princapal Challenge because the Estate of B. does not appear in the Record and he had not the immediate Reversion 2 Rolls Abr. 654. Gabriel Dennis's Case In the Lord Brooks's Case the Court was informed That rhe Lessor of the Plaintiff was High Sheriff of the County and that the Coroner was Under-Sheriff Elisors and it was prayed that that Elisors might return the Jury but the Court would not grant it at the Prayer of the Defendant though the Plaintiff offered to agree to it it being in a Trial of Nisi prius but had it been in a Trial at Bar the Court would have granted it That the Lessor of the Plaintiff is High-Sheriff a principal Challenge but the regular Course is for the Plaintiff to pray it or else the Defendant may challenge the Array at the Assises for it is a principal Challenge that the Lessor of the Plaintiff is High-Sheriff or of Kindred to the Sheriff Tr. 1657. Hut 25. Moor 470. Rolls Rep. 320. 15 Car. 2. B. R. Duncomb and Ingleby In Ejectment the Plaintiff suggesteth that his Lessor the Sheriff and Coroners were Tenants to a Dean and Chapter Elisors whose Interest was concerned and prayed the Venire fac ' to Elisors and had it being confessed by the Defendant and the Court took it as a principal Challenge Duncomb and Inglesby's Case In Ejectione Firme the
Firme and it was not amended for tho' Ejectione Firme is but a Plea of Trespass in its nature yet the Actions are several and therefore the Venire fac ' ought to be accordingly Cro. El. 622. Clerk's Case Ejectione Firme of a Lease at Mockas in Lower Mockas The Defendant pleads Not guilty and found against him and it was moved to be a Mis-tryal for the Venire fac ' was awarded from Mockas where it ought to have been from Lower Mockas the Issue being Not guilty but if the Lease had been traversed it had been otherwise Williams and Whitin In Ejectione Firme the Plaintiff declares of a Lease of Land in B. Pernomen of c. in B. C. c. The Venue from B. is good 2 Rolls Rep. 479. Taylor and Lenn The Appearance and Issue were in Hill Venire fac ' amended 1 Jac. and the Bail was Crastino Pur ' and thereupon was the Declaration and Issue and Venire fac ' awarded bearing date the 23th of January 1 Jacobi and upon this a Distringas the 12th of February moved in Arrest That the Venire fac ' was awarded before the Appearance and Declaration to try the Issue in the same Action and cannot be good Per Cur ' it was amendable for the Roll is the Warrant of the Venire fac ' which being variant from it the Teste thereof shall be amended to be subsequent to the Issue joyned And whereas the Teste was the 23th of January which was Sunday it shall be amended it being but the Fault of the Clerk and misawarding of Process which is aided per Stat. 32 H. 8. and 18 Eliz. Cro. Jac. 64. Dolphin and Clark William Brown of Bradfeild was returned upon the Venire fac ' and Hab. Another Person sworn on the Jury who was not returned it 's no Error because Estopple Corpora and William Brown of Metfeld who was another Person and not returned was sworn yet this cannot be assigned for Error for it is against the Record which is That William Brown of B. was returned and sworn and he is estopt to say the contrary for then every Record may be brought in Question upon such Surmise Cro. Jac. 244. Bowss and Cannington A Vill and Parish are intended all one unless the contrary be shewed Vide Cro. Jac. 150. Batch and Gilbert The Court was moved to change the Venue in Ejectment laid in London because the Lands in Question did concern the Poor in London and therefore it was supposed they could not have an indifferent Trial. Per Rolls the Action is local and cannot be removed except you draw it from thence by your Plea Stiles Rep. 395. Hunslop and Johnson In Ejectione Firme upon a Lease made at D. Where it shall not come de Corpore Comitatus in Comitat ' E. of Land called S. If Not guilty be pleaded and a Venire fac ' awarded de Corpore Comitatus E. there not being any Vill named wherein the Land lies it is erroneous because this lies in some Vill out of which the Visne ought to have come to have tried it and in such case it ought not to come de Corpore Comitatus for this is larger Hob. p. 89. Rich and Sheere Venire fac ' awarded to the Coroners ita quod B. one of the Coroners se non intromittat because he was Servant of the High-Sheriff who was Lessor of the Plaintiff it was said the same was no Cause of Challenge but the Court conceived it was being confessed Moor 623. Higgins and Spicer In Ejectione Firme against four who plead Not guilty Where the Sheriff is of Affinity to the Defendant if the Plaintiff suggest that the Sheriff is of Affinity to one of the Defendants shewing how and upon this prays a Venire fac ' to the Coroners and the Defendant does not deny it and upon this the Venire fac ' is awarded to the Coroners it is well awarded For altho' none of the Defendants may challenge the Array because the Sheriff is of Affinity to one of the Defendants yet the Plaintiff ought at the Trial either to challenge the Array and so delay himself or he ought not to try this during the time that he his Sheriff which would be a great delay 2 Rolls Abr. 668. Fox and Shepheard in Exchequer-Chamber Vide Raymund 572. Consent may make a Trial had in a foreign County good In Ejectione Firme of three Acres of Land in Forresta de K. Visne de Forresta in Com. c. If the Defendant plead Non culp ' the Venue may be de Vicineto Forrestae for this is Lieu conus and by Intendment forasmuch as the Defendant had not pleaded this in Abatemenc this is out of any Parish or Vill 2 Rolls Abr. 621. Phillips and Evans In Ejectione Firme against Baron and Feme The Wife found Not guilty and a Special Verdict as to the Baron which was insufficient a Venire fac ' de nove awarded for both and why on Not guilty pleaded and a Venire fac ' granted the Jury find the Wife Not guilty and find a special Verdict as to the Husband which Special Verdict is afterwards adjudged insufficient a Venire fac ' de novo shall be awarded for both as well the Wife as the Husband And upon this new Writ the Wife may be found guilty because the Record and Issue is intire and for this their Verdict is insufficient in all and void Vid. infra Tit. Special Verdict CHAP. X. Of joyning Issue and Trial and Bill of Exception In what Cases there shall be Amendment THE Record of the Nisi prius was amended by the Plea-Roll 1 Brownl 133. Gaff and Randal Issue was joyned the Defendant pleads Not guilty and it was entred and the aforesaid Lessor likewise where it should have been praedict ' Querens similiter and it was amended So praedict ' Thomas similiter where it should be praedict ' Johannes similiter and it was amended 2 Brownl 102. Weeby's Case 2 Rolls Abr. 199. The Issue was Not guilty and a Venire awarded retornable 3 Trin. and the Essoyn adjourned by the Plaintiff till Michaelmass-Term and at the next Assises the Plaintiff notwithstanding the Essoyn and the adjourning it procured a Nisi prius by which it was found for the Plaintiff And per Curiam no Nisi prius ought to issue out in this Case because the Plaintiff himself by the adjourning the Essoyn cast by the Defendant until Michaelmass-Term had barred himself of all Proceedings in the mean time And the words in the Stat. W. 2. c. 27. Stat. W. 2. c. 27. are Postquam aliquis posuerit se in aliquam inquisitionem ad prox ' diem allocet ' ei Esson ' import That the Essoyn shall not be taken at the Retorn of the Process against the Jury altho' the Jury be ready at the Bar. But then it was surmised that the Defendant was not Essoyned for the Name of the Defendant is E.
or Will and so the Jury may find them the Deed or Will not being found in haec verba Stiles p. 34. Wright and Pindar A Deed made before the time of Memory A Deed made before time of Memory Ancient Deed. may be given in Evidence tho' it cannot be pleaded An ancient Deed is good Evidence without proving or Seal to it P. 17 Car. 2. B. R. Wright and Sherrard A Will Will. Probate under which a Title of Land is made must be shewed it self and the Probate is not sufficient Contra if it were on a Circumstance or as Inducement or that the Will remain in Chancery or other Court by Special Order of such Court 1 Keb. 117. Eden and Thalkill 2 Rolls 678. So is Brett's A Probate of a Will by Witnesses for Lands is not Evidence at Common Law And nothing can be given in Evidence against the Probate of a Will but Forgery of it or its being obtained by Surprize and so it 's conclusive Raym. 405. Error was brought of a Judgment in C. B. in Ireland in Ejectment The Question was upon a Bill of Exception for that the Justices of the Bench there would not direct the Jury Bill of Exceptions on the Probate of a Will that the Probate of a Will before the Archbishop of Canterbury the Testator dying in his Province and also the Bishop of Fernes were sufficient and conclusive Evidence but only affirmed it was good Evidence leaving it to the Jury To which the other Party shews in Evidence Letters of Administration of the Goods under Seal of the Primate of Ireland The Title was for a Lease for years in Ireland claimed by the Lessor of the Plaintiff under the said Administrator And Judgment was affirmed Per Curiam Where Bills Answers Depositions c. in Chancery shall be good Evidence in this Action or not In Ejectment the Defendant that made Title as a Purchasor under a Devisee Bill preferred by the Heir against the Devisee setting forth the Will and shewed only a Bill in Chancery preferred by the Heir under whom the Lessor of the Plaintiff claims against the Devisee whereby the Will was set forth and confessed in the Answer But per Curiam it is no Evidence tho' a Possession were proved accordingly in the Devisee and that this had been confessed by the Plaintiff in a former Tryal 2 Keb. 35. Evans and Herbert And yet in 1 Ventr p. 66. A Bill in Chancery was said to be given in Evidence against the Complainant On a Tryal in Ejectment it was shewed for Evidence That the Defendant P. was guilty of Simony for giving 100 l. per Annum to M. the Patron and to prove this they shewed a Bond conditioned to pay 100 l. per Annum generally And they say That an Action of Debt was brought against P. and P. had preferred his Bill in Chancery to be relieved against this Bond and by it disclosed that it was entred into for the Cause aforesaid But to that it was Answered That P. was presented by G. but it appeared that G. acted as a Servant to M. the Patron and it was opposed Where a Copy of a Bill shall be read as Evidence That this Bill is no Evidence because it only contains Matter suggested perhaps by the Council or Sollicitor without the Privity of the Party But per Curiam the Copy of the Bill shall be read as Evidence for it shall not be intended it was preferred without the Privity of the Party and it being disclosed by the Party himself otherwise they would not allow a Bill in Evidence if there be not Answer and other Proceedings upon it Siderf p. 220. Dr. Crawley's Case But at a Tryal the Plaintiff to prove his Bond offered a Bill by the Defendant in Chancery which Keeling Chief Justice held good Evidence as in the Parson of Amersham's Case Dr. Crawley where a Bill by P. a Simoniac to be relieved against his Bond was admitted against himself this being the Drift of the Bill and not any particular Allegation But the Court would not allow it Where an Answer in Chancery shall be good Evidence at a Tryal or not In a Tryal at Bar between Mills and Bernardiston an Answer of L. M. surviving Trustee under whom the Plaintiff claimed was offered for Evidence but being after a Conveyance by him the Court refused but had it been before it would be good against all claiming under him Answer ' good Evidence against the Defendant himself but not against other Parties But Twisden denied it because an Answer does not discover the whole Truth and therefore shall be only admitted against the Party himself that made it and not of one Defendant against another much less against a Stranger 2 Car. 2. B. R. And by Ley Chamberlain and Dodderidge a Defendant's Answer in an English Court is a good Evidence to be given to a Jury against the Defendant himself but it is no good Evidence against other Parties Godb. Case 418. 2 Rolls Rep. 311. Berisford and Phillips And if the Defendant's Answer be read to the Jury it is not binding to the Jury and it may be read to them by the Assent of the Parties Godb. 326. An Infant answered a Bill in Chancery by his Guardian Infant 's Answer by Guardian not to be read in Evidence against the Infant and it was a Question in Leigh and Ward 's Case in a Tryal at Bar in Ejectment where the Infant was Party whether that Answer could be read in Evidence against the Infant This Question was sent from the King's Bench by Justice Eyres to the Common Pleas to know their Opinion and per totam Curiam it could not be read for there is no Reason that what the Guardian swears in his Answer should affect the Infant 2 Ventr 1 William and Mary Where and in what Cases Depositions shall be read at a Tryal and where not Regularly the Depositions in Chancery or Exchequer Depositions no Evidence if the Party be alive of a Witness shall not be given in Evidence if he be alive But if Affidavit be made that he is dead they shall in a Cause between the same Parties Plaintiffs and Defendants Godb. p. 193. Sir Francis Fortescue Depositions taken in Chancery in perpetuam rei memoriam Depositions no Evidence without an Answer put in upon a Bill for that purpose exhibited cannot be given in Evidence in a Tryal at Law unless there be an Answer put in and produced Hardr. 336. Raymund Watts's Case Depositions taken before Commissioners of Bankrupts Depositions before Commissioners of Bankrupts no Evidence at a Tryal shall not be used as Evidence at a Tryal altho' the Witnesses be dead but Depositions taken before the Coroner with Proof that the Party made them if dead shall be good Evidence P. 18 Car. 2. Bick and Browning Exemplification of Depositions under the Great Seal Exemplificat ' 〈◊〉 Depositioâ—â— 988. whereby a Conveyance made
in 986. was lost and proved Per Cur ' being so old and the Records of the Rolls burnt since it is good Evidence tho' the Bill and Answer were not in it 2 Keb. 31. In Ejectment for Lands in Kent it was held upon Evidence by the Court and by Advice of other Judges whom one of the Barons was sent to consult That if one Witness be examined for the Defendant de bene esse to preserve his Testimony upon a Bill preferred Examination taken before Issue joyned no Evidence Hardr. 315. Brown's Case and before Answer and upon an Order of Court for his Examination made upon hearing of Council on both sides and if after Answer the Witness die before he be examined again he being sick all the while yet the Examination of such a Witness shall not be read in Evidence because it was taken before Issue joyned Divers Depositions in Chancery taken de bene esse Depositions de bene esse without Answer of the Defendant were produced in Evidence but the Court refused to permit the reading of such Depositions for Default of the Answer and it was agreed That the Court is not bound to such Evidence but the Course in such Case is by Order of Chancery to require the adverse Party to admit such Evidence but this doth not bind the Courts of the Common Law Sir Thomas Jones p. 164. Poricye's Case Two were made Parties to a Bill one had Title but the other does not claim Titile but in his Answer sets forth many things which made for the Title of the other Defendant And between other Parties in B. R. these Depositions were prayed to be admitted in Evidence to prove the same Title but it was not suffered because whatever the Defendant saith he saith it in Defence of himself and partially And Chamberlain Justice said The Answer of a Defendant is not good Evidence for any purpose but against himself 2 Rolls Rep. 311. Berisford and Phillips A Voluntary Affidavit made before a Master of the Chancery cannot be given in Evidence at a Tryal Stiles 446. Decree or Decretal-Order under the Exchequer-Seal Decree or Decretal-Order which recites the Proceedings and if it have Bill and Answer allowed to be read 1 Keb. 21. Trowel and Castle PEDIGREE In Ejectione Firme for the Barony of Cockermouth and the Lands c. the Lessor shewed an Inquisition in tempore R. 2. and finds an Intail to Henry Earl Piercy and derives his Title under his Third Son and offers in Evidence Dugdale's Baronage but it was not allowed In Ejectment the Earl of Thanet makes his Title by a Gift in Tail by King Edward II. to Robert de Clifford and the Heirs of his Body and to prove him to be Heir of the Body of the said Robert he produceth a Chart of his Pedegree which deriving him from the said Robert shews him to be his Heir And Sir William Dugdale and other Heralds being sworn they affirm that the Chart was deduced out of the Recodrs and and Ancient Books in the Heralds Office but the Court would not allow this for Evidence without shewing the Books and Record out of which they were deduced And after an Ancient Book was shewed by them which was allowed for Evidence Sir Thomas Jones 224. Earl of Thanet's Case Office found is no concluding Evidence Sir Tho. Jones 224. What Matter may or must be Pleaded and what Matter may or must be given in Evidence It is a Rule in Law Regula in all such Actions wherein one cannot Plead there the Matter to be Pleaded shall be given in Evidence and found per Verdict but where the Party may Plead the same is to be Pleaded by him Therefore in Ejectione Firme Trespass c. in Action on the Stat. 5 R. 2. cap. 7. and other personal Actions Collateral Warranty given in Evidence a Collateral Warranty cannot be Pleaded in Bar but he shall have the benefit of it by giving the same in Evidence to a Jury and the same is to be found by Verdict of the Jury so is Seymor's Case 10 Rep. 97. That Collateral Warranty may be given in Evidence on Not guilty Pleaded in Ejectione Firme because in that and other personal Actions that may not be Pleaded in Bar 1 Bulstr 166 167. Haywood and Smith 10 Rep. 97. Seymor's Case 1 Rep. Chudley's Case The Jury may find a Condition to Defeat a Freehold of Land Condition to defeat a Freehold found by Jury altho' it be not Pleaded but of things in Grant they must also find the Deed of the Condition 21 Ass 14. The Jury may find Estoppel which cannot be Pleaded Estopple found by Jury and Estoppels which bind the Interest of the Land as the taing a Lease of a Man 's own Land by Deed indented and the like being specially found by the Jury The Court ought to Judge according to the Special Matter 2 Rep. 4. Goddard's Case What Evidence the Jury shall have with them after Evidence given The Jury may not carry any other Evidence with them but what is delivered to them by the Court and shewn in Evidence Upon Evidence to a Jury to prove J. S. to be Heir to W. S. The Court will not accept the Pedigree drawn by an Herald at Arms for Evidence nor will suffer the Jury to have it with them it s but only Information for Direction p. 8. Jac. B. Plumton and Robinson If an Exemplification comes out of Chancery of Witnisses there examined upon Oath who are Dead the Jury shall have it with them not so if some are Living and some are Dead p. 10 Jac. B. Tomlinson and Croke If after Evidence given to the Jury at the Bar and they depart the Solliciter of the Plaintiff come to them and delivers to them a Church Book to take an Age which was given to them in Evidence before at the Bar and their shewed to them and after they found for the Plaintiff yet this shall not avoid the Verdict because it was no other than what was given to them in Evidence before Vicars and Farthing's Case What shall be good Evidence to make Title in several Special Case A Verdict for the Lessee is good Evidence for a Reversion in Ejectment Hardr. 472. In Ejectment of a Rectory As to a Rectory the taking of Tithes only no good Evidence of Ejement The Evidence was of the taking of Tithes only and not Entry into the Gleble and the Plaintiff was Non-suit so it was in Perry and VVheeler's Case 1 Keb. 368. for a Rectory consists of Glebe and Tithes Latch 62. Hems and Stroud A Parson in the Ejectment of a Rectory What things a Parson in the Ejectment of a Rectory must prove if he will make out his Title must prove Admission Institution aud Induction his reading and subscribing the Articles c. and his Declaration in the Church of his full and free assent and consent to all the things contained in the Common Prayer
and this must be proved to be done within the time limited by the Statute but he need not to shew a Right in him that presented him 2 Keb. 48. Siderf 221. Dr. Crawley's Case In Evidence an Institution without Presentation Institution without presentation proved no Evidence or Copy of it was refused in Court albeit a Presentation may be made by Parol but proof must be made of it ibid. Admission Institution and Induction upon the Presentation of a Stranger is a good matter to bar him who had Right in an Ejectione Firme and to put him to his Quare Impedit Sid. 221. Dr. Crawly's Case In Ejectment Evidence as to an Appropriation The Defendant had a Lease of a Prebend made in tempore Hen. 8. and expired and he now claimed a Lease from a nominal Prebendary thereof founded in the Cathoedral Church of Lincoln The Plaintiff claimed under Letters Patents from King James 1. and the Possession was according to this Grant and it was a Question if they ought to shew how it came to the Crown but the Possession having gone with it The Court did presume the Grant to King James to be lost and Judgment pro Quer. as in the Case of an Impropriation Hales being Councel It was insisted the Impropriation was presentative till Ed. 4th time and could not be appropriated withouth the King's Licence quod Curia concessit and he could not produce the Licence yet because it was enjoyed ever since Edward the 4th time as Appropriate the Court did intend a Licence and that the Patent was lost before the Inrolment and a Verdict accordingly p. 27. Car. 2. Coterel's Case In Ejectment for a several Fishing On Not guilty Where constant enjoyment good Evidence if the Plaintiff derive a Title as high as the Abbies he need not shew any Patent or Derivation from the Crown but the constant enjoyment is sufficient unless one be sued by the Crown 14 Car. 2. B. R. Sir Chr. Guise and Adams In Evidence to a Jury at Bar The Defendant made Title by the Feoffment of the Lord M. to his Son in Law the Earl of C. on which there was no Livery nor Inrolment but both lived together but the Father was reputed Owner and paid the Rates and a year after released and confirmed to his Son and his Heirs and this Title was opposed because there was never any inception of an Estate at Will no entry being proved by the Son after the Deeds made What entry shall be intended and need not be proved But per Cur. The Feoffment with future Conveyances is sufficient both living together the entry shall be intended and need not be specially proved whereupon the Plaintiff was Non-suited M. 20. Car. 2. B. R. Dunaston and Sir Jerom Whichcoat In Berry and Wheeler's Case in Ejectment Extent of a Rectory on Elegit The Council excepted to an Extent under which the Plaintiff claimed because after Execution of Fieri facias for part Elegit was for the whole without mentioning any thing levied by the former Elegit which recited the Fieri facias but was returned nihil sed non allocatur 2. It was further objected That it appears that more than a Moiety is extended For it s said That the Defendant was seized of a Rectory of the value of 100 l. and other Lands appurtenant que quidem Rectoria sine terris Glebalibus is the Moiety But per Cur. it may be understood of the Church-yard c. distinct from other Lands pertaining and as long as the Extent continues it cannot thus be denied but there is Glebe M. 14. Car. 2. B. R. Berry and Wheeler In Ejectment Defendant not to give in Evidence a former Mortgage made by himself The Defendant shall not give in Evidence a former Mortgage or Conveyance made by himself and therefore in such Cases it s left for him that hath the former Mortgage to get himself made Defendant before the Cause comes to Tryal If an ancient Deed of Feoffment be shewed Long Possession but not Livery upon it if Possession have gone along with the Deed this is good Evidence to a Jury to find Livery 2 Rolls Rep. 132. He which affirms the matter in Issue ought first to make proof to the Jury and when the Priories were suppressed a Commission issued Whether parâ—el of a Prioâ—â—y Certificate and a Certificate upon this upon all the Possessions and their values which belonged to the Priories and therefore it is good Evidence in Issue whether Land was parcel of the Priory or not that no mention of it is in the Certificate Lit. Rep. 36. Variance of the Evidence from the Declararation or what Evidence shall be said to maintain the Issue In Ejectione Firme if the Plaintiff Declares upon a Lease made by two Lease by two and one was Lessor for life remainder to the other and gives in Evidence that one of the Lessors was Lessee for Life the Remainder to the other this is a material variance from the Declaration in as much as this is only the Lease of the Tenant for Life 2 Rolls Abr. 719. England and Long. So if a Man Declare a Lease by two Lease by two where one had nothing in the Land where one had nothing in the Land and so void as to him yet this is a material variance id ibid. So if a Man Declare of a Lease made by Baron and Feme and gives in Evidence a Lease made by the Husband only this is a material variance So it is By Joynt Lease and they are Tenant in Common if a Man Declare of a Joynt Lease made by two and it appeareth upon the Evidence That the two Lessors were Tenants in Common and so several Leases this is a material variance But otherwise it is if it appear upon the Evidence That the two Lessors were Copartners for this is one Lease being made by them Copartners Cr. Jac. 166. Mantler's Case If the Declaration be of a Lease of three Acres The Acres and Lease of a Moiety a Lease of a Moiety in Evidence will not maintain the Declaration for it is not the same Lease but in Seabright's Case B. R. 40 El. and Cooper and Franckling's Case 14 Jac. Ejectione Firme of 20 Acres the Jury found him guilty of the Moiety and Not guilty of the residue the Plaintiff shall have Judgment against Plowden 224. Brake and Right 's Case The Declaration in Ejectment 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 that which is demanded in the Declaration And it was said The Plaintiff cannot have a Verdict Verdict to be taken according to the Title because the Verdict in such a Case ought to agree with the Declaration but
or uncertainty in reference to Acres Parishes Vills Place Of Verdict being taken by Parcels How the Ejectment of a Manor to be brought Of a Verdict on other Lease or Date than is declared upon which shall be good or not Of the Juries finding parcel Where Verdict shall be good for part and void for the residue The time of the Entry of the Plaitiff's Lessor where material Where the Jury ought to find an actual Ouster on him that had the Right Prout lex postulat how to be understood Where and in what Cases Special Verdict may be amended A General Verdict IF at a Tryal at Bar there be matter in Law and the Judges agreeto it and so the Jury do not find it Specially but give a General Verdict The Judgment shall be according to the Verdict and cannot be staied 1 Bulstr 118. Platt and Sleep Ejectment of seven Messuages sive Tenementis is ill after a General Verdict and its ill on Demurrer but this might have been helped by taking Verdict of either So it is where Ejectment is de Messuagio Tenemento its ill after a General Verdict 2 Keb. 80. 82. Burbury and Yeoman in this Case the Verdict was general for the Plaintiff for the Messuages and non culp for the Tenements it seems it had been good But Hales Chief Baron refused to allow of such finding in the Home Circuit And it was said by the Court as this Case is The Plaintiff may not Aid himself per releasing of part as perhaps he might had there been Lands also in the Declaration 295 Mesme Case But first Council to subscribe the Points in Question Special Verdict I shall set down two or three things observable as Rules or Directions of the Court in reference to Special Verdicts It was made a Rule of Court That in finding of Special Verdicts where the Points are single and not complicated and no Special Conclusions the Council if required shall subscribe the Points in Question and agree to amend the omissions or mistakes in the mean Conveyances according to the truth to bring the Points in Question to Judgment It was likewise Order'd in Roll's time Of finding Deeds in haec â—â—erba That the unnecessary finding of Deeds in haec verba upon Special Verdicts where the Question rests not upon them but are only derivative of Title shall be spared and found briefly according to the substance they bear in reference to the Deed be it Feoffment Lease Grant c. Note Attachment against the Defendant because he would not bring in his Evidences In 2 Rolls Rep. 331. An Attachment was awarded against the Defendants because they would not bring in their Evidence for to have a Special Verdict in Ejectione Firme and this by the course of the Court because there is no other remedy As to the Rules of Special Verdict Estoppels Estoppels found by the Jury which bind the Interest of the Interest of the Land as the taking of a Man 's own Land by Deed indented and the like being Specially found by the Jury The Court ought to Judge according to the Special matter for the Estoppels regularly must be pleeded and relied upon by apt Conclusion and the Jury is Sworn ad veritatem dicendam yet when they find veritatem factis they persue well their Oath and the Court ought to judge according to Law So may the Jury find a Warranty being given in Evidence tho' it be not pleaded 10 Rep. 97. vide supra tit Evidence And if the Jury find the truth the Court shall adjudge it to be a void Lease vid. Cr. Eliz. 140. Sutton and Rawlin's Case In Ejectment Priority of Possession where a good Title if it appear by the Record of a Special Verdict that the Plaintiff had Priority of Possession and no Title be proved for the Defendant the Plaintiff shall have Judgment as in Coryton's Case J. Hiblin was seised in Fee of the Lands in Question and by his last Will deviseth unto A. H. Lessor of the Plaintiff if my Son T. H. happen to have no Issue-male after the Death of my Wife and if he have Issue-male then 5 l. to be paid to A. H. The Devisor died seised leaving Issue Thomas who had R. Issue-male Ann the Wife of the Devisor survives him and after dies and they find that A. and Eliz. were Sisters and Coheirs of the said R. the Issue-male who died without Issue And they found the Entry of the Lessor of the Plaintiff and the Lease to the Plaintiff prout in the Declaration and that the Defendant as Guardian to A. and Eliz. ousted him The Points in Law in this case were not argued because it appears by the Record That the Lessor had Priority of Possession and there is not any Title found for the Defendant For tho it be found that A. and E. were Coheirs to the Issue-male that is to no purpose because it was not found that they were Heirs of the Devisor and the Estate-Tail admitting it were so appears to be spent by the Death of Thomas Hiblin without Heir-male and so they had no Title and then the Priority of Possession only gives a good Title to the Lessor of the Plaintiff against the Defendant and all the World besides but only against the Heir of the Devisor 2 Sanders 112. Allen and Rivington In Bateman and Allen's Case there was Special Verdict in Ejectment sed utrum the Entry of the Defendant upon the matter be lawful or not they pray Advice And if the Entry were lawful they find for the Defendant if not c. Now forasmuch as in all the Verdict it is not found that the Defendant had the primer Possession nor that he entred in the Right or by the Command of any who had Title but it is found he entred upon the Possession of the Plaintiff without any Title his Entry is not lawful and the Plaintiff had good Cause of Action against him wherefore the Plaintiff shall recover and so held all the Court wherefore they would not hear any Argument as to matter of Law But if the Conclusion of the Verdict had been si c. whether the Entry of Hill and his Wife were lawful or not then the Judgment should have been upon Matter in Law for that it should be intended that the Defendant had Title iâ— the Lessor of the Plaintiff had no Title 〈◊〉 and that the Plaintiff had not Cause of Action but now not Craw and Ramsey Viâ— infra Cro. El. 437. Bateman and Allen. Plâ— Nervis Scholastica Special Verdict finds W. B. seised and devised the Reversion of all Messuages except in D. to the Heirs of the Devisor anâ— that Tho. B. was Brother and Heir and enâ—tred and leased to the Plaintiff till the Dâ—â—fendant ejected him and have found no Tâ—â—tle for the Defendant now being there is 〈◊〉 Title found for the Defendant nor of what Land this Ejectment was viz. That it was not of that devised
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-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
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
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
that Exception seemed not valid Cr. El. 642. Hemsley and Price So in 3 Rep. Sir George Brown's Case Anthony is found Son but not Heir and yet without his being Heir the Plaintiff had no Title And yet in Cymbal and Sand's Case Cro. Car. 391. Gimlet and Sands the Court seemed to be of Opinion That tho' the Jury found that Humfrey had Issue by Hebell his Wife John unicum filium suum that not finding that he was Heir it was in case of his being Heir to a Warranty collateral was not good for he might have elder Sons by another Venter or there might be an Attainder or the Warranty might be discharged or released io his Life-time 2 Rolls Abr. 701. mesme Case The Jury found a Special Verdict on a Will in which they found A. had Issue two Sons B. and C. and do not find which of them was the elder and which the younger which is material in the Case This Verdict is not good for tho' B. is first named yet it doth not appear by this that he is the eldest Son M. 20 Jac. B. R. Peryn and Pearse Uncertainty as to part of a House The Defendant pleads Not guilty Part of an House the Jury find him not guilty for part and guilty de tanto unius Messuagij in occupatione c. quantum stat super Ripam Per Cur ' the Verdict is insufficient for the Uncertainty for tho' the Certainty may appear to the Jury yet that is not enough the Court ought to give Judgment oportet quod res deducatur in judicium The Court must be informed of the Certainty and it ought to appear to them Had they found him guilty of a Room it had been good So if he had been found guilty of a third part for of them the Law takes notice And an Ejectione Firme was brought for the Gate-house at Westminster and the Jury found the Defendant guilty for so much as is between such a Room and such a Room and it was adjudged good Guilty of a Room is good Marsh Rep. 47. Juxon and Andrews As to Certainty of Acres Ejectione Firme was brought of 400 Acres of Land As to Acres and the Jury find the Defendant quoad all besides three Acres parcel tenementorum praedictorum Not guilty Quoad c. and quoad the three Acres they find special matter and that G. A. the Lessor let the aforesaid three Acres to the Plaintiff and that he was possessed and that the Defendant ejected him out of the three Acres Parcel parcel ' tenementorum praedictorum and they did not find the Ejectment of the aforesaid three Acres c. and it may be the Ejectment was of other three Acres and for this Cause per totam Curiam held ill Cr. El. 642. Hemsley and Price Ejectment of 5 Acres if the Jury find the Defendant guilty in 8 Perches de terre parcel ' tenementorum praedictorum it 's a void Verdict because uncertain and no Execution can be made of Pieces 2 Rolls Abr. 694. Pawlet and Dr. Redman And this is the Difference between Trespass and Ejectment The Plaintiff declares of Trespass in one Acre in D. and abutts it East West North and South Upon Not guilty the Jury finds the Defendant guilty in dimidio Acrae infra script ' the Plaintiff shall have Judgment and so if they had found but one Foot of the Acre And it sufficeth to be found in one Moiety of the Acre bounded in this Action where Damages are only to be recovered But if it were in Ejectment the Verdict had been ill It must be certain in what part the Plaintiff must have his Hab. fac possess aliter in Trespass for it is not certain in what part the Plaintiff shall have his Habere fac ' possessionem Yelv. p. 114. Winckworth and Man In Ejectione Firme the Plaintiff declares of a Messuage 3000 Acres of Land 3000 Acres of Pasture in D. per nomina of the Manor of Monkall and 5 Closes per nomina c. The Jury give a Special Verdict quoad four Closes of Pasture containing by Estimation 2000 Acres of Pasture that the Defendant was not guilty quoad residuum they find the Matter in Law This Verdict is imperfect in all for when the Jury found the Defendant was not guilty of four Closes of Pasture containing by Estimation 2000 Acres of Pasture Quoad residuum must be certain it is uncertain and doth not appear of how much they acquit him and then when they find quoad residuum for the special Matter it is uncertain what that Residue is so there cannot be any Judgment given And a Venire fac ' de novo was awarded Cro. Jac ' 114. Woolmer and Caston In Ejectione Firme de septem Messuagiit sive tenementis De Messuagiis sive Tenementis is ill and the Verdict helps it not and Verdict pro Quer ' it's ill for the Uncertainty and the Verdict doth not help it And Hales refused to let the Jury find for the Plaintiff for the Messuages and Non culp ' for the Tenements But per Twisden had it been de uno Messuagio sive Tenemento vocat ' The Black Swan it had been good because the last part makes it certain Sid. 195. 2 Keb. 80. Cro. El. 186. On Special Verdict in Ejectment the Case was As to Acres and Parishes the Declaration was of several Messuages in the several Parishes of St. Michael St. James St. Peter and St. Paul and that part of the Premisses lie in the Parish of St. Peter and St. Paul and that there is no Parish called the Parish of St. Peter nor none called the Parish of St. Paul Per Cur ' the Copulative Et shall be referred to that which is real and hath existence ut res magis valeat not to make St. Peter's one Parish and St. Paul another but to make them both one Parish and the Words several Parishes are supplied by the Parishes before mentioned as 6 Ed. 3. Praecipe of 10 Acres in A. B. and C. there the Lands must lie in every one of the Vills but if the Praecipe were de Manerio de decem Acris in A. B. and C. there it would be well enough tho' the Manor lay elsewhere provided that ten Acres lay within the Vills aforesaid for then the last words are satisfied by the ten Acres Hardr. 1. 330. Ingleton and Wakeman Yet in Thomas and Kenn's Case P. 38 El. B. R. it 's said in Dyer ult Edit in margine 34. b. Ejectione Firme upon Title of Land of Sir Hugh Portman the Count was of an hundred Acres in D. and S. and Non culp ' pleaded the Jury found the Defendant ejected him of ten Acres only and shews not them in Certain and adjudged a good Verdict and the Plaintiff had Judgment It 's a Rule laid down Where ever but one Acre 〈◊〉 found certain â—ne may release â—ll the rest 1 Rolls 784. Rhethorick
and Chappel's Case where-ever an Acre is but found certain a man may release all the rest that is uncertain and nothing is more usual Of uncertainty in a Special Verdict in reference to the Place or Vill. Ejectione Firme of 30 Acres of Land in D. and S. The Defendant was found Guilty of 10 Acres and quoad residuum Not Guilty Acres in two Vills and the Jury found the Defendant Guilty and say not how many lie in one Vill and how many in another And it was moved in Arrest of Judgment That it was uncertain in which of the Vills those Lands lay and therefore no Judgment can be given Sed non Allocat and adjudged pro Quer. For the Sheriff shall take his Information from the party for what 10 Acres the Verdict was So is Siderf 75. If one Dcclares for a 100 Acres of Land in two Vills and the Jury find the Defendant Guilty this is good without saying how many Acres lie in the Vill and how many in the other And the Sheriff ought to take notice of this at his Peril in making of Execution And so in Dence and Dence his Case It shall be intended that every Acre of Land named in the Declaration lies in both Vills for so much is presumed by the Declaration and the Venire from both Vills Cro. Car. 467. Portman and Morgan Sid. p. 75. Yelv. 228. Dences's Case Trin. 43. El. Meredith and Brown It was adjudged in B. R. that in Ejectione Firme supposing the Ejectment of 10 Acre and the Jury find the Circumstances but of 4 Acres the Plaintiff shall recover these 4 Acres But Dame Baskervile's Case was in 39 Eliz. Assize was brought of a Park containing 60 Acres and the Jury â—ound the Disseisâ— but of 30 Acres and adjudged against the Plaintiff for all But note the Park was entire Dyer 15. b. As to time It was a great Case between Vernon and Gray The Ejectment was supposed the first of May and the Jury found the Ejectment to be circa the first of May. It was held not good Godb. 125. cited in Yarran and Bradshaw's Case Of a Verdict in other Leases or Date than is declared upon The Plaintiff Declares of a Lease by two Copyhold-Lords Jury find on a Demise generally Lessors of the Plaintiff for a Term certain and the Jury find a Demise generally and do not find the Lease whereupon the Plaintiff Declares and it may be any other Lease which might not be determined at the time of the Verdict but is now since and the Ejectment is only found out of this Count of a Lease for years in Possession the Jury sound the Lease made on another Day it s against the Plaintiff Aliter if it be made to commence at a Day to come and not on the Lease declared on 19 Car. 2. B. C. Lenthal and Thomas In Ejectment if the Plaintiff Declares of a Lease for years made the first of May to commence at the first of St. Michael then next ensuing which is now past if the Jury find that the Lease was made the first of June or at any other Day before the Feast of S. Michael This is found pro Quer. For the Day of the making is not material so that it was made to commence at a Day to come By Foster it s the common practice 1 Rolls Abr. 704. But if in Ejectment the Plaintiff Declares of a Lease for years in Possession such a Day and the Jury find the Lease to be made at another Day this shall be found against the Plaintiff because it is not the same Lease So it is If a Man in an Ejectione Firme Declare of a Lease made the 5th of May 10 Jac. Habend from the Annunciation before for three years And the Jury found the Lease to be made the 15 Day of May 10 Jac. Habend from the Annunciation before being the same Lady-day for three years This is found against the Plaintiff because this was a Lease in Possession at another Day scilicet 15 of May than the Plaintiff had counted altho' it had the same Commencement But in Musgraves's Case it was The Lease in the Declaration was a Lease made the 5 of May 10 Jac. Habend from the Feast of the Annunciation then last past for 21 years extunc scilicet from the Feast of the Annunciation next ensuing But the Lease found by the Jury was a Lease made the said 5 of May 10 Jac. per Indent bearing Date the said 5 Day of May Anno 10 Jac. Habend from the Feast of the Annunciation beate Marie Virginis tunc ultimo preterito pro termino 21 annorum prox sequen ' dat' dicte Indenture It was adjudged pro Quer. and so affirmed in a Writ of Error But I conceive this Case is best reported by Allen. The Plaintiff declared That J. S. the 5 of May 10 Jac. demised a House to him Habend from the Feast of the Annunciation last past for 21 years extunc prox sequend and the Defendant the same 5 Day of May ejected him And upon Not Guilty the Jury found that J. S. the said 5 of May by Indenture bearing Date the 4 of May demised the House to the Plaintiff Habend from the Feast of the Annunciation last past for 21 years next ensuing the Date hereof fully to be compleat and ended And upon the Verdict the Plaintiff had Judgment which was affirmed in Scaccario The Term began from the Feast of the Annunciation in Computation of the 21 years and on the 5 of May in point of Interest Allen p. 77. In Pope and Skinner's Case The Plaintiff must make his Title truly The Plaintiff Declares of a Lease made to him the 30 Day of March 11 Jac. Habend from the Feast of the Annunciation next before for a year The Defendant Traverseth the Lease modo forma The Jury find a Lease to the Plaintiff on the 25 Day of March for one year from thence next ensuing This is against the Plaintiff for being in Ejectione Firme he Demands and Recovers the Term and therefore must make his Title Aliter in Replevin Hob. pag. 73. Pope and Skinner Ejectment of a Lease made the 12 of December Habend à primo die On Not guilty The Jury found a Lease made in haec verba which was dated the 1 of December Hab. from henceforth but delivered the 12 of December It was objected That from the Day of the Date and from henceforth are several Commencements for the one begins the Day it was Sealed the other the Day after Habend hence forth But per Cur. They are both one being a computation of time from the time past and both shall be pleaded to begin from the Day of the Date when the Lease is afterwards Sealed at another Day and if the Lease be made the 1 of December Hab. henceforth the Ejectment may be alledged the same Day Aliter If it be à die datus Pro Quer. Cr. Jac. 258. Lewellin versus
Williams Verdict finds The Averment of the Estate Tail to be found that the Lessor of the Plaintiff was seised in Tail of the Rectory c. and does not shew the beginning of the Estate Tail which is the particular Estate Per Cur. It is an apparent fault Cr. Eliz. 407. Baker and Searle In the said Case where the Party comes in by a Limitation of an Use Where when the party comes in by Limitation of Use it must say vigore stat the Verdict saith virtute cujus dimissionis and it ought to have been virtute Statut. Per Cur. This is an apparent fault in Substance and Form The Issue in Ejectment was if Julian the Wife of the Defendant was alive at such a time Diversity of names and the Jury found that Jenimet the Wife of the Defendant was alive at such a time Per Cur. They shall not be adjudged one and the same Person without finding also by the Custom of the Country that Women baptised by the name of Julian have beenalso called Jenimet Moor 411. No. 560. Huntbach and Shepard Verdict as to Baron and Feme In Ejectione Firme against Baron and Feme On Not guilty pleaded and a Venire fac ' granted the Jury found the Wife Note guilty and found a Special Verdict as to the Husband Wife sound Not guilty and Special Verdict as to the Husband which Special Verdict is afterwards adjudged insufficient by the Court. A Venire fac ' de novo shall be awarded for both as well for the Wife as the Husband and upon this new Writ the Wife may be found Guilty because the Record and Issue is intire and for this their Verdict is insufficient in all and void 2 Rolls Abr. 722. Langly and Pain Venire de novo So in Swan's Case Stiles 412. Ejectment against Baron and Feme and the Feme is found Ejector by the Verdict and nothing is found concerning the Husband and a Venire fac ' de novo was awarded unless they will agree to amend the Verdict according to the Notes Where and in what Cafes Special Verdicts may be amended Where a Special Verdict is not entred according to the Notes Record of a Special Verdict amended the Record may be amended and made agree with the Notes at any time tho' it be 3 or 4 Terms after it is entred 4 Rep. 52. 8 Rep. 162. Cr. Car. 145. And where a Verdict is certainly given at the Tryal and uncertainly returned by the Clerk of the Assizes Postea where amended c. the postea may be amended upon the Judges certifying the truth how the Verdict was given Cr. Car. 338. The Plaintiff was Non-suited at the Assizes Non-suit â—oâ— default of Warrant to try the Cause not Recorded for default of the Warrant of the Justices to try the Cause viz. for not confessing Lease Entry and Ouster and prayed that the Non-suit might not be Recorded which the Court granted and an Alias Distringas 1 Keb. 508. Pits and Viner Cro. Car. 203. Aquila Wicke's Case If the Plaintiff makes Title upon a Demise made by Tho. Bill and Agnes his Wife and the Parties are at Issue and the Record of Nisi prius was entred by the Clerk that the said Tho. Bill and Anne his Wife made the Demise Record of Nisi prius variance from the Roll not amendable c. so that the Record of Nisi prius differs from the Roll this shall not be amended for if the Record should be amended the Jury should be attaint in as much as they found a Lease made by Tho. Bill and Agnes his Wife and peradventure this Lease will not prove a Lease by Tho. Bill and Anne his Wife 1 Rolls Abr. 202. King and King CHAP. XIII Where the Defendant shall have Costs and Damages How the Plaintiff may aid himself by Release of Damage Executor not to pay Costs Lessor of the Plaintiff to pay Cost Where Tenant in Possession liable to pay Costs or not Feme to pay Costs on Death of her Husband Infant Lessor to pay Costs of the Writ of Enquiry The Entry Writ of Error Lies upon the Judgment before the Writ of Enquiry and why Writ of Enquiry how abated The Jury are to find Costs and Damages in Debt Trespass Ejectment c IF the Plaintiff mistake his Declaration Regular the Defendant shall have Costs The Plaintiff may relinquish his Damages where part of the Action fails and take Judgment for the other Release of Damages And so is the Rule If part of the things Demanded in this Action are well demanded and part of the things demanded are not well demanded and Verdict is given for the Plaintiff for the whole and entire Damages are given The Plaintiff may release all the Damages in that which is not demanded and pray Judgment for the Residue and this shall aid Error if Judgment be given accordingly As in Ejectione Firme of a Messuage Cottage and Tenement if it be found for the Plaintiff and entire Damages given for the whole because Ejectione Firme does not lie of a Tenement the Plaintiff may release all the Damages because it is entire and have Judgment for all the Land saving the Tenement and this shall not be Erroneous So in Ejectment of Land and de libertate Pischarie for libera Pischaria which is not good the Plaintiff may Release all the Damages and have Judgment for the Land only altho' he cannot be said properly to Release Damages as to the Pischary where none were Godb. pag. 354. No. 439. 1 Rolls Abr. 786. Clive and Vere 1 Rolls Abr. 784 786. Retorick and Chappel Ejectment was for Entry into a Messuage sive tenementum and 4 Acres of Land to the same belonging As to the Messuage sive tenementum The Declaration is uncertain and if the Damages are Released Warranty the Costs are gone also It is uncertain to which the 4 Acres belong i. e. to the Messuage or Tenement But per Cur. as to the 4 Acres its certain enough and the words to the same belonging are merely void 3 Leon. p. 228. Wood and Pain In Ejectment Judgment is against the Defendant who dies Executors not to pay Costs and his Executor brings a Writ of Error and is Non-suited He shall not pay Costs an Executor is not within the Statute for paying of Costs Occasione dilationis Mod. Rep. 77. In Ejectment against 2. A. B. they prayed to be made Defendants and were so confessing Lease Entry and Ouster and at the Tryal A. confessed so much as was in his Possession for certain but B. would not proceed with him and the Plaintiff was Non-suit against both He that tried it prayed Costs which the Court granted but they must joyn in the Suit of Execution for Costs 2 Keb. 219. Sir Cyril Wych's Case The Lessor of the Plaintiff in Ejectment shall be liable to Costs Feme liable to pay Costs on Baron Death the Lease being made
in Fine and Nonclaim the Fine must be shewed with Proclamations under Seal ibid. Copy of a Recovery given in Evidence ibid. Inspeximus how far it is Evidence ibid. Transcript of a Record or Inrolment of a Deed may be given in Evidence and how 154 Evidence as to Matters of Fait 157 Who to shew the Original Deed in Evidence 155 Where a Deed shall be proved by Testimony without shewing it 156 A Deed cancelled by Practice may be shewed in Evidence ibid. Copies where Deeds are burnt good Evidence ibid. Copy out of a Leiger-book no Evidence 152 Copy of a Counterpart allowed to be Evidence ibid. Thô Seals be broken off yet a Deed may be given in Evidence ibid. Where Copies of Court-Rolls may be given in Evidence ibid. A Will under which a Title of Land is made must be shewed it self 158 Where Bills Answers Depositions shall be good Evidence 159 Where Copy of a Bill shall be read in Evidence 159 160 Where an Answer in Chancery shall be good Evidence or not Where and in what Cases Depositions shall be read at a Tryal or not 162 Exemplification of Depositions if Evidence ibid. Decree or Decretal Order where allowed to be Evidence 164 Pedigree where allowed to be Evidence or not what Matter may or must be pleaded and what Matter may or must be given in Evidence 165 Condition to defeat a Freehold found by Jury ibid. What Evidence the Jury shall have with them after Evidence given 166 What shall be good Evidence to make a Title 167 Evidence as to an Appropriation 168 VVhere constant enjoyment is good Evidence ibid. VVhat is good Evidence to prove Lands parcel of a Priory or not 170 VVhat Evidence shall be said to maintain the Issue ibid. Estoppels found by Jury and how 165 A Man ousts the Executors of his Lessee â—r years what Remedy EXECUTION Execution in Ejectment 230 How Execution shall be where there are two Defendants one confesseth and the other is found Not guilty Execution on Recovery by Baron in Ejectment of the Wife's Term 239 If a Man recover in Ejectment against J. S. who after dies he must sue Execution against his Heir for by intendment J. S. his Ancestor was a Disseisor ibid. Extent of a Rectory on Elegit 169 Remedy against undue Extent on Elegit by Ejectment 19 Exemplification of a Verdict 175 ERROR Of what Error the Court shall take Conisance without Certificate 257 Variance between the Writ and Declaration ibid. Variance between the Record and the Writ of Error 258 Nonage in Issue upon Error where to be tried ibid. Amendment of the Judgment before a Certiorari awarded in Error 262 Release of Errors from one of the Plaintiffs in the Writ of Error shall only bar him that released it and why ib. Outlawry of one of the Defendants pleaded in Error 263 Error without Bail a Supersedeas ibid. Release by casual Ejector a Fraud 265 266 Error in Ireland 268 G. Difference between a Guardian and Prochein Amy 30 H. Habere fac ' possessionem how to be executed 242 How the Sheriff is to esteem the Acres 243 VVhere Delivery of one Messuage by the Sheriff in the name of all is good or not ibid. How the Sheriff is to give Possession of a Rent or Common ibid. Hab. fac possessionem is good without Retorn 244 How awarded into Ireland ibid. In what Cases and when a new Hab. fac possessionem may be awarded 244 245 Not to be granted after a Year without Motion 248 Of Misdemeanor in giving Possession 249 I. Inspeximus how an Evidence or not in Ejectment 153 INTENDMENT Reversion shall be intended to continue 190 Where a Lease shall be intended to be in being 191 VVhere a Dying seised shall be intended 192 Incertainty in Special Verdict Vid. Verdict Writ of Inquiry in Ejectment and the Entry 224 Stranger may enter notwithstanding Judgment in Intrusion â—7 Judgment in Intrusion what ibid. Ejectment by Joyntenant 75 Of Issue in Ejectment 139 JUDGMENT Judgment against ones own Ejector when to be entred 240 No Judgment against the casual Ejector but by Motion 104 No Judgment upon Nihil dicit but upon Motion 239 In what Cases and for what Causes Judgments in Ejectment are erroneous 233 Judgment was reverst for not severing by number of Acres and yet entire Damages 234 Plaintiff brings a Writ of Error and Judgment is reversed what Judgment he shall have 235 In what Cases Judgments shall be amended 236 After Judgment the Court of Equity would not relieve in case of a Mortgage 239 Writ of Error lies upon the Judgment by Nihil dicit before the Retorn of the Writ of Inquiry and why Chap. Judgment The Form of entring Judgments in Ejectment 227 How the Entry is when part is pro Quer ' and part against him ibid. Judgment against several Ejectors 228 The Plaintiff shall be in Misericordia but once 229 One of the Plaintiffs died during a Curia advisare vult it shall not stay the Judgment 230 Suggestion to be entred on the Roll one Defendant being dead after Nonsuit 231 After Verdict and before Judgment the Plaintiff dies and Judgment given for him the same Term 232 Of pleading to the Jurisdiction 113 JURY Another Person sworn on the Jury who was not retorned no Error lies because an Estoppel 136 What Evidence the Jury shall have with em after Evidence given 166 Jury find the Interest of the Land came to the Lessor but shew not how 193 K. Lessee of the King may bring Ejectione Firme tho' the King be not put out of the Freehold 20 L. Of the Ejectment Lease 46 The Defendant not to confess Lease Entry and Ouster for any more than is in his Possession 39 In what Cases the Court will give leave to return the General Confession of Lease Entry and Ouster 40 Of the Defendants refusal to confess Lease Entry and Ouster and the consequence 40 41 Where the Confession of Lease Entry and Ouster shall supply an actual Entry or not 42 43 The Term in the Ejectment Lease enlarged 46 After Default in Ejctment the Defendant may confess Lease Entry and Ouster Lease to Try a Title no Maintenance 47 Ejectment brought on a Lease made the â—ame Term ibid. Commencement of Leases 68 69 70 Where the Lease shall be intended to be delivered on the Day of the Demise and not of the Date 71 Lease not warranted by the Declaration 83 Why the new Rule of confessing Lease Entry and Ouster was introduced 115 Lease recited in the Release was admitted to be proved by Witnesses to the Release without shewing the Lease it self 156 What notice the Court takes of the Lessor of the Plaintiff 233 Jury find Virtute literarum patentium and find not the Letters Patents under Seal 19â— M. Ejectment of a Manor how to be brought 52 201 Manor in Reputation 196 The Defendant in Ejectment not to give in Evidence a former Mortgage made by himself 169 O. Person Outlawed may bring
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