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
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
prius over-ruled it that this Declaration was well maintained by the Lease and the Jury gave a Verdict according to his Opinion Cro. Jac. p. 83. Jordan and Steere Upon a Lease by Tenant for life and him in Remainder A. Tenant for life Remainder to B. in fee they both by Indenture joyn in a Lease to the Plaintiff Per Cur ' this is the Lease of A. during his Life the Confirmation of B. and after the Death of A. it is the Lease of B. and the Confirmation of A. And because the Plaintiff in Ejectment had counted of a joynt-Lease by A. Verdict and B. it was adjudged against him 6 Rep. 15. Treport's Case So is the Case in Popham p. 57. upon a Demise by Dorothy Pool and Robert Smith it was thus on a Special Verdict Dorothy was Tenant for Life Remainder to Smith in Fee and they being so seised made the Lease in the Declaration Per Cur ' the Lease found per the Verdict doth not warrant the Lease alledged in the Declaration for during Dorothy's Life it 's her demise and not the demise of Smith but as his Confirmation for that time for he had nothing to do to meddle with the Land during the Life of Dorothy and after her death it shall be said to be the demise of Smith and not before Poph. 57. King and Berry By a Corporation The Plaintiff declares upon a Lease to him made by the President Fellows and Scholars of St. John's Colledge Oxon. and in the Conclusion he doth not say hic in Curia prolat ' Per Williams it is not good The Ejectment-Lease being made by a Corporation they sealed the Lease and delivered it by their Attorney having a Letter of Attorney from them to deliver the same they cannot do this in any other manner than by their Attorney 1 Bulstr. 119. Lord Norris's Case Hill 36 El. Carter and Cromwel in Ejectione Firme the Plaintiff counts per Lease made by the Warden of All-souls Colledge in Oxon. And Exception was taken because the name of Baptism of the Warden was omitted but adjudged there need not the difference is where a Corporation is sole Person as Bishop there may be his Name aliter aggregate Dyer 86. Marg. Ejectment was brought on a Demise of a Corporation not saying by Deed per Cur ' Judgment shall not be arrested for this on Judgment by cognovit Actionem at the Assises but it shall be intended after this as well as after a Verdict Upon a Lease by Commissioners of Bankrupt Commissioners of Bankrupt had assigned the Land in Question to the Lessor of the Plaintiff which Indenture was afterwards inrolled but the Declaration was of a Demise made after the Indenture and before the Inrolment and whether that Demise were sufficient to intitle the Lessor of the Plaintiff was the Question in Perry and Bowe 's Case Per Cur ' it is not sufficient Vide le case 2 Ventr 360. Perry and Bower By Copyholder If a Lease be found made by a Guardian or Copyholder such a Lease will maintain the Declaration tho' their Leases are void against the Lord and Infant Hardr. 330. Wheeler's Case Vide supra Tit. Who shall have Ejectione Firme By Administrator He ought to shew how the Archbishop granted it either as Ordinary or by his Prerogative and therefore Exception was taken to a Declaration in Ejectment because the Plaintiff conveyed his Interest by an Administrator of all the Goods of the Lessee in Sussex and Kent but shews not how the Archbishop granted it either as Ordinary or by his Prerogative Presidents not to be changed and this was held by the Court to be a material Exception But because all the Presidents in B. R. and B. C. were so in general without shewing how and because they would not change Presidents they disallowed the Exception Cro. El. p. 6. Dorrel and Collins In Gillam and Lovelace's Case it was moved in Arrest of Judgment That the Declaration brought by Administratrix was not good because the granting forth Letters of Administration was in this manner viz. Administratio commissa fuit querenti per William Lewin vicarium generalem in spiritualibus Episc Rot. without averring that at the time of the granting Letters of Administration Vicar-General the Bishop was in remotis agendis for a Bishop present in England cannot have Vicarium but per Cur ' the Vicar-General in spiritualibus amounts to a Chancellor for in the Truth a Chancellor is Vicar-General to the Bishop 2. The Declaration is not Episcop Roff. loci illius ordinarii but per Cur. all the Presidents are so and in a Declaration such Allegation needs not but by way of Barr it is necessary 3. The Plaintiff declares of Ejectment and also quod bona catalla ibid. invent cepit and in the Verdict the Damages for the Ejectment and Goods are entirely taxed Quaere de hoc 1 Leon. p. 312. Gilham and Lovelace Ejectione Firme was brought of a Lease of Tythes and shews not that it was by Deed and ruled to be ill because Tythes cannot pass without Deed Cr. Jac. 613. Swadling and Peers CHAP. VII Where in the Declaration a Life must be averred and where it need not Of Delivery of Declarations at or after the Essoyne-day Declurations when to be entred as of the same Term where the Copies need not be paid for Declarations when amendable or not Of expressing the Vills where the Lands lie Of the Pernomen Declaration need not be of more Acres than he was ejected out of Of the Forms of the Declaration Vi Armis omitted Extr. tenet omitted The President of Declarations in C. B. in B. R. in Scacario The Indorsement on the Copy to be left with the Tenant and what the Tenant is to do thereupon The Rule for confessing Lease Entry and Ouster in B. C. and in B. R. IF one do declare upon a Lease in Ejectione Firme and that by Virtue of that Lease he was in possession of the Lands thereby let to him until that he was ejected by the Defendant it is supposed that the Lessor who made the Lease to him was alive at the time of the Action brought Pract. Reg. 110. The Plaintiff in Ejectment declared of a Lease for three years if the Wife of the Plaintiff shall so long live and does not shew that the Wife is yet in Life yet per Cur ' this being after a Verdict is made good by the Stat. 21 Jac. of Amendments after Examination by the Sheriff And in Arundel's Case in Ejectment the Plaintiff declares that the Lady Morley being only Tenant for life made a Lease to him for three years if she should so long live virtute cujus intravit fuit possessionat ' until the Defendant entred upon him illum à firma sua praedicta termino suo nondum finito extratenet c. and he did not averr the Life of the Lady Morley But per Cur ' this amounts to an Averment for he
is ejected that he shall have an Ejectione Firme without any Admittance of the Lessor or without any Presentment that he is Heir 1 Leon. p. 101. Rumney and Eves Pop. 38 Bullock and Dibler But a Copyholder Mortgagee must be admitted before he bring this Action Copyholder Mortgagee must be admitted before he brings this Action and he may bring his Bill against the Lord to be admitted to inable him to try the Custom 2 Keb. 357. Towell and Cornish Ejectione Firme may be brought by By Executors Executors of Land let to their Testator for years upon ouster of the Testator for years per Stat. 4. Ed. 4. c. 6. which gives an Action for Goods taken out of the Possession of the Testator the Reason is because it is to recover the Term it self 7 H. 4. 6. b. 2 Ventr p. 30. If a Man ousts the Executors of his Lessee for years of their Term they may have a special Action on the Case or they may have Ejectione Firme or Trespass 4 Rep. 95. a. Reg. 97. N. B. 92. In Ejectment the Plaintiff was an Infant at the time of the Bill purchased By Infant and sued by Attorney where he could not make an Attorney but ought to have sued by Guardian per Cur ' it's erroneous and Error en fait Cro. Jac. p. 5. Rew and Long. Deprivation in the Spiritual Court for Symony By Symonist disables from bringing Ejectment because he can make no Lease per H. Windham Buck's Lent Assises 1668. Dr. Crawley's Case In Jefferson and Dawson's Case Council pray'd The Sheriff only to deliver Seâ—sure on Elegit to enable the Plaintiff to maintain Ejectment That delivery of Possession might be awarded on Elegit but the Court denied it the Party having no day to interplead and the Sheriff ought only to deliver Seisure to enable the Plaintiff to maintain Ejectment and the Tenant may plead on the Ejectment or else the Tenant may be turned out unheard and so be remediless and per. Cur ' actual Possession ought not to be delivered but if it be it 's remediless and yet before Entry the Plaintiff for whom the Inquisition is found Ejectione Firme be for actual Entry on Elegit has Possession and before actual Entry he may have Ejectione Firme and is not like to an Interesse Termini M. 25 Car. 2. B. R. In some Cases Remedy against an undue Extent may be by Ejectment Remedy against undue Extent on Elegit by Ejectment as The Inquest by Practice of the Sheriff on Elegit find the Defendant had Lands in A. where he had nothing and so extended all his Lands in B. as a Moiety this is avoidable by Ejectment as to a Moiety and the Evidence may be That the Defendant had nothing in A. or to file the Writ of Elegit and in Ejectment thereon which else cannot be brought to plead the same Ejectment against Tenant by Elegit in case of holding over not so of a Judgment and why or in case of holding over Ejectment lies against Tenant by Elegit if he be satisfied at the extended Value contra of a Judgment which is uncertain for Costs and Damages 1 Keb. 891. Dakin and Hulme 1 Keb. 858. Lord Stamford and Hubbard Intruder on the King's Possession By Intruder cannot make a Lease whereupon the Lessee may maintain an Ejectione Firme tho' he may have an Action of Trespass against a Stranger Stranger may enter notwithstanding Judgment in Informat ' in Intrusion but a Judgment in Information of Intrusion pro Rege binds not a Stranger but that he may enter and bring Ejectment if it were otherwise this would be a Trap for any Man's Possession by lawful Title and the Judgment on Intrusion is not in the nature of Seisin or Possession Judgment in Intrusion what but only quod pars committatur capiatur pro fine and an Entry may be made by the King 's Patentee Hardress p. 460. Friend and the Duke of Richmond If a Stranger entreth upon the King 's Fermor by such Entry he hath gained the Estate for years and if he doth make a Lease to another his Lessee may maintain Ejectione Ferme A Lessee may have Ejectione Firme tho' the Reversion be in the King So that it seems the Ejector by his Entry hath gained the Land 2 H. 6. 6. Dyer 116. b. 3 Leon. p. 206. The Lessee of the King may bring Ejectione Firme The Lessee of the King tho' the King be not put out of the Freehold by the Words He entred and expulsed him Cr. El. 331. Lee and Morris It 's said in Leonard 1 part 212. Lessee of Tenant in Common of one Moiety By Tenant in Common of one Moiety without actual Ouster cannot maintain Ejectione Firme against the Lessee of his Companion J. Entry taken away by lapse of time for not entring M. covenants to stand seised to the use of himself for life and after to the use of his Daughters until every one of them successive shall or may have levied 500 l. Remainder to his eldest Son He had four Daughters at the time of his Deaâ—â— and the Land was worth 100 l. per Annum the Father died in 30 El. the eldest Son immediately entred the eldest Daughter entred in 42 Eliz. and made the Lease to the Plaintiff Per Cur ' she hath overpast her time and cannot enter for then she should prejudice her other Sisters so as they should never levy their Portions Cr. El. 809. Blackbourn and Lassells A Person outlawed may bring Ejectione Firme By a Person outlawed For tho' a Person outlawed cannot after an Extent prevent or avoid the King's Title by Alienation yet the Outlawry gives no Priviledge to the Possession of a Disseisor but that the Disseisee may enter and bring the Ejectment for by the Outlary the King hath only a Title to the Profits and no Interest in the Land Hadr. 156. Hammond's Case vide If a Man ousts the Executors of his Lessee for years of their Term By Executors they may have a special Action on the Case or they may have an Ejectione Firme or Trespass 4. Rep. 95. a. Reg. 97. N. B. 92. One seised of Lands in Fee-Simple The Bail lets Lands to B. Judgment is against the Principal and Extent on the Lands leased B brings Ejectment becomes Bail in an Action of Debt in B. R. and after Issue joyned let the Land to B. the Plaintiff Judgment is afterwards given against the Principal and an Extent taken upon the said leased Lands B. the Plaintiff being thereupon ousted brings this Action of Ejectione Firme Crok Jac. 449. Kervile and Brokest Tenant for life Where the Issue in Tail is 〈◊〉 to Execution on a 〈◊〉 on Sc ' fac ' retorned and he comes not in and pleads he shall not bring his Ejectment Remainder to his Issue in Tail Tenant for life enters into a Stat ' and dies Conisee sues
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
the Remainder to the Heirs of the Body of the Husband the Husband makes a Feoffment in Fee with Warranty and takes back an Estate to him and his Wife for their Lives the Remainder over to make a Remitter to the Wife there ought to be an Entry To make a Remitter there must be a new Entry Prout lex pestulat and no new Entry is found by the Special Verdict to be by the Husband but only prout lex postulat The Court advised a new Tryal and to amend the Special Verdict and to find the Entry of the Baron and Feme The time of the Entry of the Plaintiff is sometimes material as in Fort and Berkley's Case The time of the Entry of the Plaintiffs Lessor Per Cur. In that Case which way soever the Law had been taken Judgment could not have been given for the Defendant There was a Lease made to Godolphin in Reversion under whom the Plaintiff claims Chersey the Lessor of the Plaintiff did Enter upon the Possession of Berkley the Defendant but when he did Enter does not appear then the Case is Berkley was in Possession If the Lessor of the Plaintiff enter'd before the Term began he was a Disseisor as it was Dier 89. Clifford's Case But it s said he was possest prout lex postulat Prout lex postulat as so he was of the Reversion too it does not appear but that he was a Disseisor and so continued Carters Rep. 159 160. If the Title appear to be in a Stranger they must find an Ouster made to him who had the Right Where actual Ouster must be â—ound And therefore in Ejectione Firme If the Jury find a Special Verdict being matter in Law upon a Lease for years reserving Rent upon Condition c. but no Title is found for the Plaintiff nor Defendant but it is only found that the Lessor of the Plaintiff being a Stranger Enters into the Land and Leaseth this to the Plaintiff by which the Plaintiff was possest prout lex postulat until the Defendant entred and ejected him this is not a good Verdict the Title appearing to be a in Stranger without any actual Ouster made to him who had the Right 2 Rolls Abr. 699. Bland and Inman In an Ejectione Firme the Jury find a Special Verdict and find Special Matter in Law whether J. S. had right to the Land upon which the Court adjudged That he has right to the Land But they find farther Ouster Dissesin That J. D Entered into the Land upon J. S. and was thereof seized prout lex postulat and made the Lease to the Plaintiff and the Lessee was by force of this possessed and it is not found that J. D. disseised J. S. and for that upon this Verdict shall not be intended that J. D. oustred J. S. and disseised him and then the Entry of J. D. and his Lease is void and so an Action does not lie against a Stranger who had nothing in the Land as was Hitchin and Glover's Case In Ejectione Firme by the Lessee of a Colledge if the Jury find a Special Verdict in this manner viz. That the Colledge let this to A. upon Condition and found a Special Matter in Law whether the Condition be broken and that the Colledge supposing the Condition broken by their Bayliff entred Entry by a Colledge how to be found and let this to the Plaintiff this is not a good Special Verdict without finding of a command given by the Colledge to the Bayliff to Enter to be by Deed for otherwise it is not good 2 Rolls Abr. p. 700. Dumper and Simms A. was seised and demised to his Executors the Lands in Question for the performance of his Will till the Executors levy 100 Marks or until his Heirs pay to them 200 Marks and that the Executors after his Death entred and were possest prout lex postulat Prout lex postulat how far extend and being so possest granted to the Plaintiff who entred and was possest till the Ejectment This is uncertain because it is not found that the Heir had paid the Money Super totam materiam for they say super totam materiam and to say prout lex postulat is not an affirmation of any certain Possession Palmer 192. Langly and Paine Of the Juries finding by Parcels It is a Rule Verdict that finds part of Issue and no-nothing for the residue is insufficient A Verdict that finds part of the Issue and nothing for the residue is insufficient As in Pemble and Sterne's Case Raym. 165. The Demise is laid of a Park Messuage 300 Acres of Land and the Verdict finds only as to parcel and nothing of the residue for the Plaintiff or the Defendant the Verdict is void so is the Rule 1 Inst p. 227. A Verdict that finds part of the Issue and finding nothing of the residue it is insufficient for the whole because they have not tried the whole Issue wherewith they are charged Car. Jac. 113. Ejectione Firme of a Lease of Messuages 3000 Acres of Land 3000 Acres of Pasture in D. per nomina of Monkhal and 5 Closes per nomina On Not guilty the Jury gave a Special Verdict viz quoad 4 Closes of Pasture containing by Estimation 2000 Acres of Pasture that the Defendant was Not guilty Quoad resid quoad resid they find the matter in Law this Verdict is imperfect in all for when the Jury find that the Defendant was Not guilty of 4 Closes of Pasture containing by Estimation 2000 Acres of Pasture it is not certain and it doth not appear of how much they acquit him and then when they find quoad residuum for the Special matter it is uncertain what that residue is a Venire fac ' de novo was awarded A Verdict of more than declared for Woolmer and Caston's Case But if the Verdict be of more than declared for it shall be void for the residue As Ejectment for him who pleaded all of 14 Acres and the Jury find Guilty of 20 Acres 14 Acres The Plaintiff shall have Judgment for the and the Verdict shall be void for the residue 2 Rolls Abr. 707. 719. Seabright's Case In Ejectment of a Manor and so many Acres as includes the Manor the Jury find for the Plaintiff as to the Manor praeter the Services and as to the Services Not guilty And Judgment pro Quer. Here are 2 manifest Errors 1. When the Court is of a Manor the Jury cannot find for the Plaintiff for that which is not a Manor and there is none that brings Ejectment of a Manor Ejectment of a Manor how to be brought but they also add the Acres that contain it to the end that if they prove it not a Manor they may recover according to the Acres but they must enter it so but not as here generally of both 2. The Verdict being as much as the Count the Judgment against the Plaintiff cannot be
they were fined severally where the Ejectment was against them all joyntly but because they were found several Ejectors of several Parcels the Judgment was good scilicet quilibet capiatur quoad his Parcel and if it had not been joynt it had not been been sufficient Bendl. 83. Darcy and Mason The Plaintiff shall be in Misericordia but once The Plaintiff shall be in Misericordia but once As Ejectment with Force three of the Defendants were found Guilty of the House and ten Acres of Land and Not guilty for the Residue The fourth Defendant is found Not guilty generally And Judgment was entred That he should recover his Term in the House and ten Acres of Land and Costs against the three Defendants and that the said three Defendants capiantur and that they be acquitted quoad residuun and that the Plaintiff quoad the three Defandants pro falso clamore for so much as they were acquitted pro falso clamore against the fourth Defendant sit in Misericordia It s good enough and the course that the Plaintiff in such Cases be in Misericordia but once which is specially entred Crok Car. 178. Dockrow's Case In Croke and Sam 's Case Stiles 122. 346. The Judgments was ideo considerat ' est qd recuperet and there wants Def. capiatur it is Erroneous Form of the Entry in Case of the Death of the Plaintiff or Defendant Note That 3 Plaintiffs in Ejectment were and on general Issue it was found for the Plaintiffs One of the Plaintiffs died during a Curi advisare And 4 days after the Verdict given was moved to stay Judgment a Special matter in Law whereof the Justices were not resolved and gave day over and in the mean time one of the Plaintiffs died This shall not stay Judgment for the Postea came in 15 Pas which was the 16 of April at which Day the Court ought to give Judgment presently But Cur. advisare vult and on the 19 of April one of the Plaintiffs died and the favour of the Court shall not prejudice for the Judgment shall have relation to the 16 day of April at which time he was alive 1 Leon. 187. Isley's Case In Ejectment two Defendants were found Guilty The Death of one Defendant shall not abate the Writ and the other not The one that is Not guilty dies The Plaintiff shave Judgment against the other So it is if he that is Dead had been Guilty because this Writ is but as a Trespass where the Death of one Defendant shall not abate the Writ Moor 469. 673. Griffith and Lawrence's Case Ejectione Firme against Baron and Feme Ejectione Baron and Feme Baron dies And Verdict pro Quer. and after between the Verdict and day in Banco the Baron dies and therefore the Court in Lee and Rowley's Case 1 Rolls Rep. 14. advised the Plaintiff to relinquish this Action and only to enter the Verdict for Evidence for if Judgment is given against the Defendant and one is dead at the time of the Judgment then this will be Erroneous per Dodderidge and Mann Preignotary But Coke said The Plaintiff may make allegation that the Husband is dead and shall have Judgment against the Wife And it hath been adjudged lately Ejectment against Baron and Feme which are but one person in Law yet if the Husband dies the Suit shall proceed against the Wife Hardr. 61. But in Rigley and Lee's Case Cr. Jac. 356. Ejectment against Baron and Feme after Verdict Baron dies before the day in Banco because it is in the nature of a Trespass and the Feme is charged for her own fact Per Cur. The Action continues against the Wife and Judgment shall be entred against herself because the Baron was dead Ejectment against divers Record where not to be amended all plead Not guilty and divers Continuances were between them all where revera one of the Defendants was dead after Issue joyned and a Verdict was after found pro Quer. and the Record was moved to be amended Per Cur. we cannot do it After Verdict and before Judgment the Plaintiff may surmise that the Defendant was dead before the Verdict and Continuance was against him One Defendent dies after Issue joyned as in full Life Jones 410. Sir John Fitzherbert versus Leech And In Ejectment to try the Custom of Copyhold Suggestion entred on the Roll one Defendant being dead after Non-suit The Plaintiff was Non-suit and one of the Defendants being dead Hales Chief Justices advised to Enter a Suggestion on the Roll that one was dead else the Judgment for the Defendants on the Non-suit will be Erroneous as to all M. 23 Car. 2. B. R. Hawthorn and Bawdan Ejectment was brought against seven Ejectment against seven and one dies hanging the Writ and Error brought one dies hanging the Writ and the Judgment was given against the six without speaking any thing of the seventh where the Judgment ought to be against them that were in Life and a nil cap. as to him that was dead Otherwise there is a variance between the Writ and Judgment And a Writ of Error was brought but it was not well brought for the seventh joyned in the Writ of Error which was ad grave damnum of all the seven But had it been omitted ad grave damnum of him that was dead it had been good 2 Rolls Rep. 20. Bethell and Parry Pal. 152. Mesme Case In Hide and Markham's Case it was Ruled After Verdict and before Judgment the Plaintiff dies and Judgment his given for him the same Term. That if one bring Ejectione Firme in B. R. and there had a Verdict in a Tryal at Bar and after before Judgment he dies and after the Judgment is given for him the same Term this is not Error for that the Judgment shall relate to the Verdict But if the Verdict pass against the Plaintiff at the Nisi prius and after before the Day in Bank he dies and after Judgment is against him this is Error for as much as Judgment is given against a dead Man 1 Rolls Abr. 768. and Jurdan's Case ibid. The Plaintiff in Ejectment dies ' The Plaintiff dies after Verdict and Judgment was not staid and why Addison's Case Mod. Rep. 252. Yet as that case was the Court would not stay Judgment for between the Lessor of the Plaintiff and the Defendant there was another Cause depending and tried at the same Assizes when this Issue was tried and by Agreement between the Parties the Verdict in that Cause was drawn up but agreed it should ensue the Determination of this Verdict and the Title go accordingly Now the submission to this Rule was an implicit Agreement not to take advantage of such occurrences as the death of the Plaintiff whom we know no ways to be concerned in point of Interest and many times but an imaginary person Per Cur. We take no notice judicially that the Lessor of the Plaintiff
be Filed ibid. Ejectment brought by a Vendee of the Commissioners of Bankrupt 23 Declaration upon a Lease by Commissioners of Bankrupts 78 Ejectment by Baron and Feme 36 75 Ejectment against Baron and Feme Baron dies since the Nisi prius and before the day in Bank the Action continued against the Wife In Ejectment the Wife found Not guilty and Special Verdict as to the Husband 216 Ejectment against Baron and Feme Verdict pro Quer. Between the Verdict and day in Bank Baron dies Q. if Error But it s good to enter the Verdict for Evidence 230 Judgment against Baron and Feme is quod capiantur tho' the Baron is only found Guilty 235 Bill of Exception on the Probate of a Will 158 Where Copy of a Bill in Chancery shall be Read in Evidence or not 159 160 C. Challenge what is principal or not 229 That the Lessor of the Plaintiff is Cosin to the high Sheriff is a principal Challenge in our feigned Ejectments 131 Challenge for default of Hundredors at a Trial at Bar 132 Colour not sufficient in Ejectione Firme and why How Tenant in Common of a Moiety may maintain Ejectione Firme 20 Ejectment by Tenants in Common 74 Conizance of Pleas how to be demanded allowed and pleaded 113 How Copyholder or his Lessee shall maintain Ejectment 15 16 Declaration by a Copyholder in Ejectment 16 Ejectione Firme by a Copyholder before admittance 17 Copyholder Mortgagee must be admitted before he can bring his Action ibid. The Lord upon the seisure of a Copyhold may bring Ejectment till the Heir come to be admitted Copyholder in reversion after an Estate Tail no Witness 147 One Copartner cannot be Evidence for another in Ejectment ibid. Ejectment by Coparceners 74 Where Copies of Deeds shall be Evidence or not 157 Where Copies of Court Rolls may be given in Evidence 158 Ejectment by a Corporation how to be brought 36 77 The Defendant not to plead till Costs assessed in a former Action was paid and security for new Costs 126 The Plaintiff may relinquish his Damages where part of the Action fails and take Judgment for the other 218. But the Costs gone Executor not to pay Costs 219 Feme liable to pay Costs on the Husbands death 220 Lessor of the Plaintiff where to pay Costs ibid. Tenant in Possession liable to pay Costs by the Law ibid. In Judgment against his own Ejector no Costs to be paid by the Tenant in Possession ibid. Costs for want of Continuance 222 Infant-Lessor pays Costs ibid. The sole Remedy for Costs in the first Tryal is by Attachment unless the second Tryal is in the same Court after Verdict ibid. In what Court new Ejectment to be brought 11 Of Ejectment in inferiour Courts 38 Cinque-Ports 112 D. The Plaintiff may relinquish his Damages where part of the Action fails and take Judgment of the other 218 Diversity where Damages are only recovered and where the Term 5 He that desires to be made Defendant in Ejectment must give a Note of what is in his Possession 44 He that is made Defendant in Ejectment is not to be charged in Actions by the by 45 Rule to make the Owner Defendant 105 The Inconvenience of the new Course of Leaving Declarations in Ejectment 40 Of Declarations in Ejectment 47 48 49 c. The Certainty and Quality of the Lands ought to be described in Ejectment 54 The Plaintiff must declare on one Title only 61 Surplusage in the Count not vicious ibid. If the Entry and Ejectment be supposed in the Declaration to be before the Commencement of the Lease the Declaration is void 62 64 It must be alledged in what Vill the Tenements are 62 Ejectment of the fourth part of an House in four parts to be divided and declares de Tenementis praedictis 73 How to declare upon a Lease of Tenant for Life and him in Remainder 76 Where in a Declaration a Life must be averred and where it need not 80 A new Declaration delivered on the Essoyn-day 81 The Declaration delivered after the Essoyn-day and the Consequence 82 Where Copies of the Declarations need not be paid for 83 Declaration need not be of more Acres than he was ejected 97 Of the Omission of vi armis 98 The Omission of Extra tenet ibid. Demanding of a part of Lands without shewing into how many parts divided 99 Declaration in Ejectment quod cum good not so in Trespass ibid. Forms of Declarations in B. R. 101 B. C. 102 Scaccario 103 Copy of a Declaration with the Endorsement ibid. What is to be done after a Declaration delivered 104 What is good Service of the Declaration 107 How and wherein a Special Verdict shall make a Declaration good 187 Decree or decretal Order where allowed to be Evidence 164 DEED Difference between pleading a Deed and giving it in evidence 154 Of finding Deeds in haec verba in Special Verdicts 178 Who to shew the Original Deed in evidence 155 Where a Deed may be proved by Testimony without shewing it 156 In Ejectment against two one pleads to Issue and the other demurs the Issue isfirst to be tryed and why 8 Where and in what Cases Depositions in Chancery shall be read at a Tryal or not 162 Where primer Possession makes a Disseisin 185 Doomsday-Book good evidence 155 E. EJECTMENT The Nature of Ejectione Firme 1 The reason of the Change of Real Actions into Ejectments 2 Ejectment and Trespass for Battery both in one Writ 8 Difference between Ejectione Firme and Quare ejecit infra terminum 9 In what Court Ejectment lies 10 Where to be brought into the Exchequer ibid. In what Court a new Ejectment may be brought 11 How Ejectment to be brought of Lands in Middlesex or London ibid. Who shall have Ejectione Firme 13 In what Cases the Action lies or not 13 14 15 Against whom Ejectione Firme lies 33 Who was counted an Ejector formerly ib. The new Practice in Ejectments 34 The old way of Sealing Ejectments and where and in what Cases still to be used 35 Of the Ejectment Lease 46 Of what things Ejectione Firme may be brought and of what not 47 Ejectment against Tenant by elegit in case of holding over Ely Jurisdiction pleaded 114 Elisors 130 Elegit must be shewed in evidence 154 Entry taken away by Lapse of Time for not entring 21 Entry to deliver Declarations not good to avoid a Fine 62 Entry before the Nisi prius to be pleaded at the Assises 113 Difference between Entry after Verdict and Death ibid. What Entry shall be intended and need not be proved 169 Estoppels how found by a Jury 178 Evidence vide Witnesses What shall be good Evidence in Ejectment 151 152. 153 154 If Record be pleaded it must be sub pede sigilli 151 Copy of a Record may be shewed in Evidence to a Jury ibid. Exemplificat ' of a record in Wales no good Evidence in B. R. and why 152 Scyrograph of a Fine given in Evidence 153 But