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
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
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
to prove the Livery and Seisin One who had Estate at Will to prove a Livery afterwards one of those Witnesses had an Estate at Will made unto him of part of this Land and because being produced as a Witness to prove the Execution of the Deed was excepted against because he was a party now interested in the Land and so his Oath was to make his own Estate good But per Cur ' he may well be Sworn a Witness to prove the Livery and Seisin this being in affirmance of the Feoffment 1 Bul. 203. The Father testified a Deed in Persuance and Affirmance of a Lease Father a Witness for the Son made to his Son by himself which the Court allowed his Interest being past away 1 Keb. 280. Jay and Ryder In Ejectment on Extent on Mortgage on Trial at Bar. The Defendant excepted to the Plaintiffs Witness because his Father paid a Debt as Security with the Defendants elder Brother for the Defendants Father but there being no Counterbond and therefore doubtful in Equity whethere he as Heir could recover any thing against the Defendant as Heir the Court Swore him but if he were to let himself into a certain Interest thô but in Equity the Court will set him aside 2 Rol. 345. Vincent and Tirrinsharp In Ejectment one Baker who had been Sollicitor for P. the Defendant was produced as a Witness concerning the Rasure of a Clause in a Will supposed to be done by P. The Question was In what Case Sollicitor c. not to give Evidence against his Clyent if he ought to be examined about this because having been Sollicitor he was obliged to keep his Secrets but it appearing that B. had made this Discovery to him about which he was now to give his Evidence before such time as he had retained him Per Car. He was Sworn aliter if he had been retained his Sollicitor before The same of an Attorney or Councellor 1 Vent 179. Cutts and Pickering What shall be good Evidence in this Action and what not There are several Cases in our Books concerning Evidence upon Leases made to try the Title which I shall not at present meddle with they being of no great use since the alteration of Practice in this Action but I shall mention those which are of Dayly use and principally aim at such Evidence which is allowed or disallowed as to the proving of Title to Land without the knowledge of which there are infinite Failures and Non-suits in this Action and I shall first begin with Matters of Record and then Matters of Fait Bills Answers Depositions and other Sorts of Evidences as to Antiquities Pedigrees and what Evidence a Man must have to make Title in several Cases And Lastly Treat of Demurrers upon Evidence and Exemplifications of Verdicts As to Matters of Record If a Deed be Pleaded the Party must shew it in Court Record shewed it Court so if a Record be Pleaded it must be sub pede sigilli but Evidence it s not absolutely necessary to shew either if it can otherwise be proved to a Jury as in 1 Vent 257. In Evidence for Lands in Ejectment in Ancient Demesne the Court admitted of Evidence to prove a Record to cut off the Intail which was lost and it may be proved to a Jury by Testimony as the Decree in Henry the Eighth's time for Tithes in London is lost yet it hath been often allowed there was one And further in this Case it appeared That part of the Land was Leased for Life and the Recovery with a single Voucher was suffered by him in Reversion Long Possession and so no Tenant to the Praecipe yet in regard the Possession had followed it a long time the Court would prefume a Surrender The Copy of a Record may be shewed and given in Evidence to a Jury Copy of a Record for Records are of so high a nature and have such great credit in the Law that they cannot be proved by any other means than by themselves and no Rasure or Interlineation shall be intended in them and therefore a Copy of a Record being testified to be true is permitted to be given in Evidence but the sure way is either to exemplifie it under the great Seal or at least under the Seal of the Court 10 Rep. Leyfeild's Case In Ejectment for Lands in Brecknockshire Upon Not guilty and Tryal there The Defendant gave in Evidence a Recovery in a Writ of Quod ei deforceat which is their Writ of Right at the great Sessions there and Issue being tendered therein the Defendant produced an Exemplification of the Record under the Seal of the great Sessions but not the Record it self The Plaintiff Demurs to the Evidence and the Question was whether the Exemplification maintained the Issue or not It was agreed That a Sworn Copy of a Record in Wales might be given in Evidence Exemplificacation but not an Exemplification because the Court here ought not to take notice of such an inferior Seal but if it were Exemplified under the great Seal it would be Evidence and Proof tho the Record it self were lost And yet Whitehead's Case was That an Exemplification under the Seal of the Mayor of Bristol of a Recovery suffered there under the Town Seal should be given in Evidence tho the Record it self could not be found Note It must be given in Evidence in the like manner as it is to be pleaded and that is under the great Seal Hardress 118 119 120. Henry Olive versus George Gowin And by Hales Exemplification of a Recovery in the Marquess of Winchester's Court in ancient Demesne was allowed because it was ancient One had gotten a presentation to the Parsonage of G. in Lincolnshire and brought a Quare Impedit and the Defendant Pleaded an Appropriation and there was no Licence of Appropriation produced but because it was ancient the Court will intend it and in an ancient Recovery they would not put one to prove Seâ—sin of a Tenant in a Praecipe Mod. Rep. The Scyrograph of a Fine may be given in Evidence Scyrograph of a Fine but not delivered to the Jury 2 Sid. 145 146. in a general Issue in Assize Plowd Com. 411. Note Fine and Non-claim If a Fine be given in Evidence with five years Non-claim the Fine must be shewed with Proclamations under Seal and the Scyrograph will not serve A Fine or Recovery Fine Recovery may be found by the Jury without shewing it under Seal but they cannot find against what is admitted by the Record Sid. 271. The Copy of a Recovery was suffered to be given in Evidence Copy of a Recovery the Recovery it self being burnt Mod. Rep. 117. Green and Proud The Court allowed an old Recovery No Tenant to the Praecipe proved thô no Tenant to the Praecipe could be proved but it shall be intended Cro. Jac. 455. Mod. Rep. 117. Nothing may be delivered in Evidence to a
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
a Scire fac ' against his Heir who was Issue in Tail and the Sheriff retorns Scire feci and upon this Execution without any Plea pleaded by the Heir and the Heir being ousted by the Execution brought Ejectione Per Cur ' the Heir shall be bound by this Execution and he has no Remedy neither by Ejectment Writ of Error nor by Aud ' Querela nor by any other way but against the Sheriff if he have made a faux Retorn of the Scire fac ' Siderfin p. 55. Day and Guilford Rent granted with a Proviso Upon Entry of Grantee of a Rent and Retainer till Satisfaction for Arrear he may upon such Interest quousque maintain an Ejectment and so the Lord upon Scisure of a Copyhold till the Heir come to be admitted 1 Keb. 287. in Pateson's Case that if it be Arrear the Grantee may enter and retain until he be satisfied This Proviso shall enure to grant a certain Estate to the Grantee when he enters for Non-payment And tho' the Grantee by such Entry cannot gain a Freehold yet he had such an Interest as he may make a Lease of it and his Lessee may have an Ejectment for the Law does not give an Interest to any but it also gives a Remedy for it and if he have Remedy to hold such Possession he ought to have this Action which is the lowest Degree of gaining Possession So in the Countess of Cumberland's Case Anno 1659. of Copyholds there was a Custom That if such Tenant who claims Tenant Right does not pay his Fine the Lord may enter and retain the Land until he be satisfied and adjudged that his Lessee upon such Entry for Non-payment may maintain Ejectione Firme Siderfin p. 223. Jemot and Cowley 1 Roll. 784. 2 Keb. 20. mesme Case Cro. Jac. 511. Havergell and Hare Hill 13 Jac. B. C. Rot. 868. Brown and Hagger cited in Price and Vaughan's Case is full in the Point and Trin. 14 Car. 2. Roll. 2511. Eyer and Malin Ejectment upon a Lease of the Lord Byron special Verdict found Sir J. Byren seised in Fee by Indenture grants a Rent Charge for life to commence after the Death of the Grantor and if the Rent be Arrear that the Grantee may euter and take the Profits without Account till the Rent and Arrears shall be paid The Rent was Arrear and the Grantee enters and makes a Lease to the Plaintiff and Bridgman and the rest praeter Browne agreed for the Plaintiff It was said in the Case of Holmes and Bayly By Tenant at Will That Tenant at Will may make a Lease for years to try a Title of Land and so may a Copyholder Stiles Rep. 380. Ejectment is brought by Cesty que Trust. By Cesty que Trust Now if the Trustee of the Lease be Lessor in Ejectment he may disclaim in pays if he have not accepted the Trust which will avoid the Plaintiff's Title at the Tryal 2 Keb 794. Cheek and Lisle Vendee of the Commissioners on the Statute of Bankrupts of Lands by Deed Indented By a Vendee of the Commissioners of Bankrupts cannot maintain by his Lessee an Ejectione Firme before Inrollment of the Deed altho' it be inrolled after the Action brought And the Difference between this and the case of a common Bargain and Sale per Stat. 27 H. 8. c. 10. of Uses is For there the Estate passeth by the Contract and the Use is executed by the Statute then comes the Act of Inrolments of the same year and enacts That no Estate shall pass without Inrolment and this within Six Months But the Commissioners here have not any Estate but only a Power which ought to be executed by the Means prescribed by the Statute with the Circumstances there directed which is not only by Deed indented but inrolled also Sir Tho. Jones p. 196. Perry and Bowers Note Lessor of Tenant in Possession hath no Priviledge in Ejectment tho' he be a Lord of Parliament unless he be Tenant in Possession himself 1 Keb. 329. CHAP. III. Of Process in Ejectione Firme The Original What Mistakes in the Original are Error after a Verdict or not Of a vicious Original Of the want of an Original Of an Original taken out before the Cause of Action Where Amendment shall be by the Paper-Book Of Amendments of Originals Stat. 13 Car. 2. c. 11. Of Appearance Infant how to appear sue or defend The true Difference between Guardian and Prochein Amy. Of want of Pledges Of Bail Of the Stat. 13 Car. 2. c. 2. Of Bail or Error The Original is thus REX c. Vic Midd salutem Si A. â— fecerit te securum tunc pone p 〈…〉 pleg C. D. nuper de London 〈◊〉 Ita qd sit coram Iusticiariis nostr apud 〈◊〉 tali die ad respondend W. â— â—e Plito quare vi armis unum Messâ—â—g decem Aeras Terre tres Aeras Pasture cum ê‘tinen in D. in Comit tuo que S. W. vid eid W. dimisit ad terminum qui nondum preteriit intravit ipsum a Firma sua ejecit alia enormia ei intulit ad grave damnum ipsius W. contra pacem nostram Dom Regis nunc c. T. c. On the Retorn in B. R. quindena Pasche ubicunque Writ Process In Ejectment upon a Demise by the Lord L. who was no Peer yet upon Non Culp ' good he being the same Person that did demise Allen 58. Bernard's Case So you see the Original Writ in C. B. in Ejectment is an Attachment or a Pone per vadios salvos plegios c. and Summonitus in Ejectment was held to be an Error In Ejectione Firme brought by Original Writ out of Chancery Summonit for Attachment is Error after Verdict the Record upon the Issue-Roll was entred in this manner ss Simo Edulph nuper de C. summonit fuit ad respond Tho. R. de plito quare vi armis c. And after Verdict pro Quer ' it was moved That this was a Vicious Original and not aided by any of the Statutes of Jeofail's for it appears by the Entry of it that the Original was a Summons where it ought to have been an Attachment which the Court granted but upon search there was no Original filed Aliter if there be no Original and then per Cur ' seeing there is no Original filed it shall be intended after Verdict that once there was a good Original which is now lost and that the Plaintiff's Clerk had mistaken in the Recital of it which after Verdict is not material Reg. Orig. 227. b. Saunders Rep. 1. p. 317. Redman and. Edolph Sider 423. mesme Case 2 Keb. 544. mesme Case So in Jennings and Downe's Case Error was assigned because that it appeared by the Record that the Declaration was before the Plaintiff had any Cause of Action but the Council of the other side said There is a wrong Original certified and prayed to have a
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
before the Verdict is imperfect and otherwise the Plaintiff must have had Judgment upon the prior Possession In Craw and Ramsey's Case 2 Ventr 3. the Jury find that Patrick who was the Issue born in England entred and was seised but that he Anno Dom. 1651. did bargain and sell virtute cujus the Bargainees were seised prout Lex postulat and then bargained and sold it 1662. Wild and Archer were of Opinion That the Plaintiff could not have Judgment upon that Verdict for that they their Bargainees seised prout Lex postulat but they find the Defendant entred and so the primer Possession is in him which is a good Title against the Plaintiff for whom none is found it being not found that Patrick entred But Tirrel and Vaughan said It shall be intended that Patrick entred for a Verdict that leaves all the Matter at large to the Judgment of the Court will be taken sometimes by Intendment Intendment as well as where the Jury conclude upon a Special Point Car. Jac. 64. The Jury find an Incumbent resigned it shall be intended the Resignation was accepted So Hob. 262. And where they find the Bargainees seised Prout Lex postulat prout Lex postulat that doth not leave it doubtful whether seised or not seised but whether by Right or by Wrong If the Defendant hath primer Possession first he shall not have Judgment if no other Title be found for him for Seism must betaken as found expresly neither do they find any other in Possession yet however if the Defendant had primer Possession he shall not have Judgment if no other Title be found for him as in Cr. Car. 57. Hern and Allen The Husband makes a Feoffment in Fee with Warranty and takes back an Estate to him and his Wife for their Lives c. The Husband dies the Wife enters the Question was if the Entry of the Wife shall remit to the Estate-Tail but the Jury find the Husband was seifed prout Lex postulat but no Entry by him and no Remitter can be wrought without an Entry 2 Bulstr. 31 32. Ejectione Firme of the Rectory of M. of the Lease of Henry Fowler and that the Lessor was presented by the Lord Windsor upon Deprivation of A. L. Upon Evidence it appeared That the Advowson was the Inheritance of the Lord Windsor who granted the next Avoidance thereof to Dr. G. The Church became void Fowler Father of Henry by Simony procures Henry to be presented who was instituted and inducted and so the King presented A. L. who was afterwards deprived But ten days before Richard Fowler procures a Grant of the next Avoidance to J. S. and procures J. S. to present Henry Fowler Per Cur ' his Presentation is meerly void he being disabled ever after to take the same place and every one who is in Possession hath good Title against him and his Lessee so as the Plaintiff cannot maintain this Action Cro. Jac. 533. Booth and Rich. Potter If the Plaintif hath not Title according to his Declaration he cannot recover whether the Defendant hath Title or not and wheiher he be a Disseissor or not as where an Infant makes a Lease at Will who enters and ousts the Plaintiff and the Plaintiff brings Ejectment Vid. 1 Leon. 211. Cotton's Case Ejectione Firme was brought upon a Lease made by Roan of the Rectory of c. Special Verdict found Glover put in a Caveat to the Bishop in the Life of the Incumbent the Incumbent dies and afterwards by the Presentation of Mantle Morgan was instituted And after Wingfeild presents Glover who was instituted and inducted and after the King presents his Clerk Roan who was inducted and after Morgan was inducted and after Roan enters and lets to the Plaintiff who upon the Entry of the Defendant brought his Action Now Morgan was instituted and after Glover was inducted which was void but by that he had the Possession and afterwards Roan the Presentee of the King is inducted and after Morgan is inducted and after Roan enters and Glover enters upon him The Question was Who had better Possession Roan or Glover Per tot ' Cur ' Roan had the better Possession if it be admitted that the King had not any Title to present for tho' Glover had the first Possession yet his Possession was defeated by the Induction of Morgan who had the true Right and then when Roan enters upon him he had the first Possession and better Right against any other praeter Morgan and by Consequence the Action will lie by the Lessee of Roan against Glover Moor 191. Hiâ—thorn and Glover On Special Verdict it was found that it was Copyhold parcel of the Manor of S. demisable for three Lives and that by the Custom of the Manor the first Name in the Copy should enjoy it during his Life sic successive and that the Lord A. granted it by Copy to Alice W. R. W. and J. W. her Sons for three Lives that R. W. made Waste in cutting down Timber Trees Lord A. seised it and granted it by Copy to the Lessor of the Plaintiff for his Life and after licensed him to let Tenements infra script ' in quibus c. for five years if J. the Lessor of the Plaintiff so long lived that he let to the Plaintiff for three years who entred and the Defendant ousted him Et si super totam c. per Cur ' inasmuch as it is a good Lease made to the Plaintiff and no Title at all appears for the Defendant but that he entred upon the Plaintiff's Possession and not by Command of any who had Right altho' there were some matter between the Plaintiff and the first Copyholder yet Judgment ought to be pro Quer ' Cro. Jac. 436. Worledge and Benbury So in Powel and Goodard's Case Tr. 21 Car. 2. B. R. in Ejectment Special Verdict finds W. G. seised in Fee and devised that P. and J. G. should be Trustees and take the Profits till the full Age of H. G. whom he makes his Heir W. G. doth authorise his Feoffees to sell so much of his Lands for payment of Debts and Funeral Charges as in their discretions shall seem meet The Feoffees for 80 l. Lease for 99 years to begin after the Death of R. G. and his Wife to three one whereof is Lessor of the Plaintiff it was found at the time of the Sale that all the Debts were paid Per Cur ' the Fee being given away from the Heir of the Devisor Priority of Title is a sufficient possession Priority a sufficient Title unless some Title be found for the Defendant and primer Possession is good where neither Party hath Title and in this Case the Lease was adjudged void the Trustees not being enabled to sell farther than to satisfie Debts In Wallis's Case Where primer Possession makes a Disseisin Stiles Rep. 291. Special Verdict was on a Copyhold-custom the primer Possession will make a Disseisin if
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
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