is more cause to stay Judgment as to Damages and Costs because the Issue hath been fairly tried and the Defendants have confessed that the Plaintiff was in Possession and that the Defendants did eject him now if his Term was not commenced but his Possession tortious yet he is not to be turned out by a Stranger that hath no Title as the Defendants were the Jury having found against them and the Damages are for the entring upon our Possession and ejecting us But the Court said It could not be amended and Mr. Levet brought a new Trial and recovered Declarations when amendable or not In Ejectment where the Title is material Declaration amended after Plea without paying Costs the Plaintiff amended his Declaration after Plea but while all was in Paper in the date of his Action without Costs paying 1 Keb. 14. After Verdict and Judgment the Declaration cannot be amended After Verdict and Judgment no Amendment of a Declaration for that might attaint the Jury As in Ejectment of the Rectory of H. and other Tenants virtute cujus intravit in tenementa praedicta Verdict and Judgment de Rectoria Tenementis praedict ' Aliter in Judgment and Acts of the Court. it cannot be amended but on such Omission in Judgment or Acts of the Court it were amendable but not of the Declaration But in this case the Court conceived it well enough Tenements include a Rectory and that the word Tenements includes Rectory whether there be Glebe or not but not so of a Mannor Hill 25 and 26 Car. 2. Bale's Case If the Plaintiff in Ejectment declare of an House lying in two Parishes Declaration of an House lying in two Parishes and the House lies in one it 's good if the House do lie in either of the Parishes and do not lie in both of them yet the Declaration is good for there is certainty enough in it Pract. Reg. 110. It must be alledged in what Vill the Tenements are It must be alledged in what Vill the Tenements are the Plaintiff declares that P. C. by Indenture apud F. let unto him one House and twenty Acres of Land by the Name of all her Tenements in S. per Cur ' the Declaration is not good because it is not alledged in what Vill the Tenements are for the naming of the Vill in the Pernomen was not material and so Cr. El. 822. Gray and Chapman The Plaintiff declares of a Lease of one Messuage ten Acres of Land Where the Pernomen is not good twenty Acres of Meadow twenty of Pasture by the name of one Messuage ten Acres Prat. be it more or less after Verdict a Nil cap. per Billam was entred For upon the matter by the Plaintiff disclosed in his own Declaration he cannot have Execution of the Quantity found by the Jury for in the Lease there is not but ten Acres demised and these words in Judgment of Law cannot be extended to thirty or forty Acres and the rather because the Land demanded by the Declaration is of another nature than that mentioned in the Pernomen for this goes only to the Meadow and the Declaration is to the arable and Pasture Yelv. p. 166. In this Action it was moved in Arrest of Judgment That the Plaintiff had declared of two Demises viz. that J. S. demised ten Acres of Land to him and that J. N. had demised ten other Acres of Land to him Habend for the Term of five Years c. and that he entred into the Premisses demised to him by J. S. and J. N. in forma praedicta After Verdict upon Not guilty for the Plaintiff it was objected That in one of the Demises there is no certain Term or Estate for the Habend ' can only be referred to the Demise of J. S. for that begins a new Sentence but per Cur ' the Habend ' shall be a good Limitation of both Demises for five Years and when it is shewed that the Plaintiff entred into the Premisses demised to him in forma praedicta Forma praedict ' how construed that is an Averment that all was demised to him for that it is forma praedicta 2 Ventr 2. W. and M. In Ejectment the Plaintiff need not count of the demise of more Acres than the Acres out of which he was ejected Declaration need not be of more Acres than he was ejected and a demise may be pleaded of any Parcel without mentioning the entire as if one demise to me two Acres for Term of Years and I am ejected out of one Acre by a Stranger Now I shall have Ejectione Firme and count that one Acre was demised to me without any mention of the other Acre 1 Saunders p. 208. Where one declares on a fictitious Lease to A. One fictitious Lease to A. and another to B. the same term the last is not good for three years and within the same Term declares of another fictitious Lease to B. of the same Lands the last is not good for Trespass for the mean Profits must be brought in the first Lessee's Name ut dicitur As to the Form Ejectment was against two Declaration against two expulit and the Declaration was intraverat expulit and it was amended Yelv. 223. Vi armis are left out in the Declaration The Omission of vi armis in the Declaration Cro. El. 340. Griffith and Williams's Case saith it is but matter of Form and it is helped after a Verdict but in Cro. Jac. 36. and Yelv. 223. in Odington and Darby's Case where vi armis was left out and Error was brought in the Exchequer-Chamber it was not suffered to be amended but Judgment was reversed So Godb. 286. and so in Sykes and Coke's Case the Want of vi armis is not helped by a Verdict but in Error in B. R. if upon diminution it be well certified the Court will amend it Godb. 286. 2 Bulstr. 35. Cr. Jac. 306. Yelv. 223. Odington and Darby 1 Keb. 164. In B. R. the Transcript of Trespass and Ejectment was de Placito Transgressionis Ejectionis omitting Firme it was amended And in B. R. it would be amended in the Record it self before Removal 1 Keb. 106. Exception was taken in Godb. The Omission of Extratenet in the Declaration 60 71. because the Plaintiff did not say in his Declaration Extratenet but per tot ' Cur ' those Words were not material for if the Defendant do put out the Plaintiff it is sufficient to maintain the Action So if it be à possessione sua ejecit instead of à firma sua ejecit it 's good for ejecit à possessione inde inde hath relation to the Farm Godb. 60 71. In Ejectione Firme the Writ and Declaration were of two parts of certain Lands in H. and saith not in two parts in three parts to be divided and yet it was good as well in the Declaration as the Writ and this
by Baron and Feme on his Death she is liable as well as other Joyntenant Surviving 1 Keb. 827. Morgan and Stapel's Case The Lessor of the Plaintiff by several Rules of Court on Demand The Lessor of the Plaintiff where to pay Costs ought to pay Costs upon the Insufficiency or Skulking of the Plaintiff in Ejectment 1 Keb. 17. The Lessor of the Plaintiff is liable to pay Costs tho' he shall never be forced to give Security for them but the Lessor of a Tenant in Possession is not liable to Costs because tho' he may come in gratis and defend his Title Tenant in Possession liable to pay Costs by the Law yet the Tenant in Possession is only liable to pay Costs by the Law But only by the Course of the Court unless the Tryal be by the Lessors means brought to the Bar and then he shall never have a second Tryal at Bar before he hath paid the Costs of the former Tryal but yet the Court for Non-payment of Costs will not hinder proceedings in the Country Per Cur. 1 Keb. 106. Latham's Case Note In Judgment against his own Ejector no Cost to be paid by the Tenant in Possession Upon a Judgment against his own Ejector in defalt of confessing Lease Entry and Ouster according to Rule of Court without Special Rule no Costs shall be paid by H. The Tenant in Possession that made the defalt c. Contra upon Tryal had against H. because the Plaintiff hath the Benefit of the Suit viz. Judgment against his own Ejector whereby he may recover the Possession 1 Keb. 242. Verdict was for the Defendant Allegation by the Plaintiff to save his Cost not allowed and the Plaintiff to save his Costs alledged That the Venue was misawarded and that there was a Fault in the Declaration but resolved per Cur ' the Defendant shall have his Costs 2 Rolls Rep. 327 Pritchard and Reynell Palmer 365. mesme Case The Plaintiff in Ejectment was nonsuited The Plaintiff not to take advantage of his own insufficient Declaration which was recorded and the Defendant sued for Costs upon the Stat. 4. Jac. c. 3. The Plaintiff alledgeth insufficiency in his own Declaration to avoid Costs upon the Words of the Stat. That in Ejectione Firme and every other Action where the Plaintiff might recover Costs c. If it had been found for him that then upon Nonsuit c. in every such Action the Defendant shall have Judgment to recover Costs against him and the Plaintiff pretends in such Action he cannot recover where the Declaration is not sufficient But per Cur ' there is no reason the Plaintiff should take Advantage of his insufficient Declaration Palmer's Rep. 147. Dove and Knapp Debt was brought on the Stat. Costs on Stat. 8 Eliz. on Nonsuit and the Stat. mistaken of 8 Eliz. for Costs in an Ejectione Firme the Plaintiff being nonsuited supposing the Statute to be made ad Parliamentum tentum 8 Eliz. whereas the Parliament began Anno quinto and by Prorogation was held in 8 Eliz. so it ought to have been ad Sessionem Parliamenti tent ' Anno octavo Eliz. and ruled to be ill Cro. Jac. 111. Ford and Hunter If no Continuance be entred Costs for want of Continuances entred then a Discontinuance may be entred and he may recover Costs in Ejectment 2 Bulstr 63. Per Stat. When Nonsuit shall be for want of a Declaration 13 Car. 2. c. 11. Nonsuit shall be for want of a Declaration before the end oâ— the next Term after Appearance and Judgment and Costs against the Plaintiff Statâ— 13 Car. 2. c. 11. In all personal Actions and in Ejection Firme for Lands c. depending by Originâ—â— Writ There need not be 15 days between the Teste-day and Day of Retorn after any Issue therein joyned anâ— also after any Judgment had or obtained there shall not need to be Fifteen Days between the Teste-day and Day of Retorn oâ— any Writ of Venire fac ' Habeas Corpus Juratt ' Distringas Jurat ' Fiere fac ' or Cap ' ad sat ' and the Writ of Fifteen days between the Teste-day and the day of Retorn of any such Writ shall not be assigned for Error Stat. 13 Car. 2. c. 11. Infant Lessor in Ejectment shall pay Costs 3 Keb. Infant Lessor pays Costs 347. Masten and King Upon a Verdict against all Evidence the Court will tax Costs and will not suspend it till a new Tryal 1 Keb. 294. If the Defendant whose Title is concerned in an Ejectione Firme will not defend his Title to the Lands in Question and the Verdict do pass against the Plaintiff the Ejector may release the Damages Pr. Reg. 100. Note This Rule as to paying of Costs if a Man had a Verdict in Ejectment The sole Remedy for Costs in the first Tryal is by Attachment unless the second Tryal be in the same Court after a Verdict and Costs taxed and an Attachment for not paying them and whereas he cannot procure them of him who ought to pay them he sues the same Party for the same thing again in an other Court and he shews this by Motion and prays he may not proceed till Costs paid yet the Court will not grant it but he ought to resort to the Remedy of the Process of the Court where he recovered for these Costs and so it is if it was in the same Court for Costs for not going on to Tryal but if it were for Costs after a Verdict in the same Court there upon Affidavit of this it 's good Cause to stay the second Tryal for the same thing unless the Costs of the first be paid Sid. p. 229. Austin and Hood Upon a Tryal at Bar in Ejectment where two were made Defendants Where Costs are confessed on Lease Entry and Ouster c. and that the other did not and had entred into the Common Rule and at the Tryal one appeared and confessed Lease Entry and Ouster but the other did not and after Evidence given the Plaintiff was Non-suited and Costs taxed for the Defendants Per Cur ' both these Defendants are intitled to the Costs and he that did not appear might release them to the Plaintiff But the Court said If there should appear to be Covin between the Lessor of the Plaintiff and the Defendant who did appear to release the Costs they would correct such Practice when it should be made to appear 2 Ventr 2. W. M. Fagge and Roberts Berkley had Judgment in Ejectione Firme in C. B. and Execution of his Damages and Costs Foot brings Error and the Judgment is affirmed whereupon B. prays his Costs for Delay and Charges but could not have them for no Costs were in such Case at Common Law And Stat. 3 H. 7. c. 10. gives them only where Error is brought in delay of Execution and here tho' he had not Execution of the Term yet he had it of his
Common Pleas the Issue is as much amendable by the Imparlance-Roll as it would have been by the Bill if the Action had been brought by Bill The Objection made to this Pulestone and Goodluck. is That tho' Tenants in Possession being not all duly served in the Country the Tenants agree to appear so as the Plaintiff would consent to try it at the Bar and that thereupon there was a new Declaration delivered which had this Mistake and seems to inferr that the former Declaration was waved and this was altogether a new Proceeding wherein the Court was misinformed for there was no new Declaration delivered and that which the Defendants produced was a Copy of the Issue only and proved nothing but that there was a Mistake which appears by the Roll and is admitted by the Plaintiff otherwise we need not this motion Now my Lord that the Defendants Appearance was to the Declaration delivered in the Country is plain for there was no other Declaration delivered nor was therein any other for them to appeal to besides it appears by the Rule wherein it is written Pulestone and Goodluck and under that the now Defendants shall be made Defendants in the room of Goodluck and shall confess Lease Entry and Ouster for the Lands in that Declaration mentioned and shall receive a Declaration and plead the General Issue and insist upon the Title only and that if the Plaintiff shall become Nonsuit for default of the Defendants confessing Lease Entry and Ouster then that Judgment shall be entred against the Defendant Goodluck c. Now my Lord I would know what Declaration the Defendants were to appear to it must be a Declaration against Goodluck and what Lease the Defendants were to confess it must be the Lease mentioned in the Declaration against Goodluck and what Judgment the Plaintiffs were to have if the Defendants did not confess Lease Entry and Ouster it must likewise be upon the Declaration against Goodluck. Now my Lord if the Defendants will shew a Declaration that was delivered them against Goodluck wherein there was this Mistake it would be hard upon us but if they cannot then the Declaration delivered against Goodluck is right and the demise they are obliged to confess is the demise in that Declaration and only mistaken by the Clerk's transcribing it Now My Lord if the Defendants have confessed a good and right demise and this hath been tried then it would be the greatest hardship in the World if the Court should not let the Plaintiff have the Benefit thereof and it is plain that the Demise the Defendants are by Rule to confess is the Demise in the Declaration against Goodluck. So that My Lord if there were no Statute to help it 〈◊〉 take it with Submission the Court having tried the Fact ought to make the Record according to the Fact they have tryed As to their consenting to appear for several of the Tenants that were not duly served on Condition the Plaintiff would try it at Bar My Lord that is an Argument against them and brings us within the Benefit of the Case betwixt Crawley and Parr where there was a Judgment in Ejectment by Confession and the Demise laid after the Judgment and amended after a Writ of Error brought because it was a Judgment by Warrant of Attorney for it should not be supposed that the Defendant gave a Warrant of Attorney to confess a void Judgment Now My Lord the Defendants consenting to appear shall never be intended to a void Declaration but to a good Declaration in order to a fair Trial. And My Lord we are the more intitled to the Benefit of it because we are Purchasors for we give a Consideration for it viz. agreed to try it at Bar and they themselves opened it so As to what was objected That when the Tenants have appeared to this Declaration in Ejectment and are made Defendants it is a new Action and that the Declaration against the Casual Ejector is rejected and that therefore this defect cannot be amended though right in the Declaration against the casual Ejector I give this Answer that the Declaration against this casual Ejector is not rejected but is by the common Rule in Ejectment made part of the Cause insomuch that if the Plaintiff be nonsuited he shall have his Judgment upon that Declaration and the Return of the Postea is Warrant for that Judgment so that by the common Rule in Ejectment they are so tied together that it is all but one Action and the now Defendants are to stand in the casual Ejector's place But My Lord the Words of the Statute are not so strict which are in any Proceedings precedenti Now My Lord the Declaration in Ejectment is a Proceeding and it is precedent and it is within the equitable meaning of the Statute which intends all Amendments that are by neglect of the Clerk if it appears that they are right in any of the Proceedings and for that end a Philiser's Note tho' no part of the Record hath been sufficient to amend by And My Lord the same may be said when the Defendant is arrested by a Lat. de Placito transgr ' and the Plaintiff declares in Debt or Case and mistakes the Christian Name Sirname whether shall it be amended by the Lat. and whether the Lat. shall be looked upon to be a Proceeding precedent to the Declaration because in another Action and so it would be if a Man be arrested de Placito transgr ' ac etiam Bill ' and the Plaintiff declares in Debt only this is likewise departing from the Writ but these are warranted by the Practice and Course of the Court these Processes being made use of only to force an Appearance and the Plaintiff may then declare in Case of Trespass or Debt as he sees good Now My Lord Declarations in Ejectment are the same thing because only made use of to force an Appearance and are by the common Rule in Ejectment become no more part of the same Action than a Lat. is But this My Lord we have a full Answer to for the Declaration against the now Defendant is entred on the Roll and is right But with Submission My Lord the Declaration is sufficient to warrant its own Amendment it being by Original viz. Que Johan ' Levett Maria eidem Rogero demiser ' ad terminum qui nondum praeteriit intraver ' ipsum à firma sua praedicta ejecer ' Now My Lord the Count may be amended by the Original which is that the Plaintiff's Lessors had before that time demised the Premisses to the Plaintiff for a Term not then past and if the Count be made of a Demise then in being it is all the Amendment we desire But My Lord here it may be objected When must that Demise bear date and commence Must the Court set a Date and Commencement to Plaintiff's Demise To which I answer That the Commencement is certain by the Declaration videlicet from the 25th
of March last and that must be the 25th day of March last before the Term the Issue is entred on which is from 96. and then the Date of the Demise must be betwixt Trinity Term 96. and the 25th of March before which points directly at the Mistake which is in Michaelmass If the 10th of Aril 1697. instead of 1696. and where the Court can by the Record take notice what was intended it is the same thing as if it had been once rightly named before and is within the meaning of that Statute which after the naming of many Mistakes hath these general words and all other Mistakes of the like nature which My Lord must be of no Signification if this be not the meaning of this Statute And My Lord as to this being the fault of the Clerk I need no Argument to prove it for the matter shews it self and the Declaration against the casual Ejector being right proves this the Fault of the Clerk in transcribing this wrong though the Declaration may properly be said to be the Act of the Client yet that shall be intended the Declaration against the casual Ejector that being the first Declaration and all that is necessary for the Client to instruct his Attorney in the rest only depending on the Forms and Practice of the Court wherein the Attorney needs no further Instructions from his Client Now My Lord I do admit that the general words in this Statute are restrained that is to say All other matters of the like nature not being against the right of the matter of Suit nor whereby the Issue or Trial are altered But My Lord this Restriction hath no relation to the particular defects that were mentioned before whereof ours is one but to the general words only and My Lord we are within the intent of these general words also For this Amendment is not against the Right of the matter of Suit for that was whether the Plaintiff's Lessor had a Title and that hath been tried and found for the Plaintiff nor is the Issue or Trial altered for had this been amended before Trial the Defendants must have pleaded the same Plea and the Trial would still have been the same The danger only was at the Trial on the Plaintiff's side whether this was not Cause of a Nonsuit and therefore it was his Business to have had it amended before Trial for fear of being nonsuited at Trial but having tried his Cause and the Right found with him he is much more entituled to the Benefit of this Amendment because it is to support a Verdict Nay My Lord a Verdict that was found according to the Right and Merits of the Cause which all Courts have been always very tender of Lastly My Lord I shall offer this to your Lordship That the matter we pray to amend is not matter of Substance yet ought to be amended to avoid Absurdity I must confess that if this had been a Demise to commence in futuro it would have admitted of a greater Argument but My Lord this is a Demise in being at the time of the Declaration and not yet expired and so much appears by the Record My Lord the Record is an Issue of Trinity Term 1696. and the Demise is laid the 10th of April 1697. Habend from the 25th of March then last past and the words in the Declaration are dimiser ' in the Writ and demisissent in the Count and that the Plaintiff entred by Vertue thereof and was possessed and the Defendant ejected him his Term being not ended c. all which the Defendant confesses This Demise must be before Trinity Term 96. or else the words demiser ' demisissent are to no purpose and it is impossible that before Trinity Term 1696. the Plaintiff's Lessors should have demised the 10th of April 1697. for that time was not come But it is possible that the 10th of April 1696. the Plaintiff's Lessors might make a Lease dated the 10th of April 1697. before the time of the date And if that be the Construction of it then this is a Deed from the time of the execution and the Term commences from the 25th day of March before Or else this being an impossible date must be altogether rejected and then Trinity Term and the 25th day of March being all the times that are certain in the Declaration the Confession is that betwixt the 25th day of March 1696. and Trinity Term following the Plaintiff's Lessors demised the date being no essential part and then this is a good Demise for five Years from the 25th of March 1696. Greater Mistakes than these have been amended after Verdict Lees and Sir Nathaniel Curson Mich last Bar. in Ejectment wherein the Plaintiff's Lessor being an Infant the Declaration was That the Infant demised by his Guardian which was no Demise and the Cause being tried at Staff last Summer Assises the Defendant's Council insisted on the Mistake and relied thereon and it being referred by consent to the Judge and a Verdict given for security the Judge referred the matter to the Court of Common Pleas who amended it though never right in any of the Proceedings The Bishop of Worcester's Case in this Court 15 Car. 1. Haslefoot and Cade after Verdict the day in Record is altered after Verdict where there were five Defendants and but three of them pleaded and after Verdict amended and the Verdict was recorded against two that no Issue was jonyed against in the Record of Ni. pr. Camberlain against the Hundred of Tundring upon the Statute of Hue and Cry 14 Car. 2. where it was ordered That the Record both of the Declaration and Issue should be amended by the Attornies and this was before Trial. Ours is a far stronger Case for this Amending if it had been before Trial would not have altered the Issue or any-wise influenced the Merits of the Cause Now My Lord we are intituled to the Favour of the Court in respect we moved this matter before Trial and were bid by the Court to move it afterwards and if this had been a fatal matter the Plaintiff ought to have been nonsuited which was then insisted on by the Defendants and denied and so the Plaintiff expose his Title paid the Charges of the Jury and other things which cost him above 100 l. and if he had been nonsuited was by Rule but to pay Country Costs and the Plaintiff's Lessors are Purchasors for a valuable Consideration under a Title of above Sixty years Possession And having now upon a fair Trial and a full Evidence obtained a Verdict we hope your Lordship will put them in a Capacity of reaping the Fruit of it The Judgment in Ejectment is double one as to his Damages upon which the Costs are attendant and the other as to the Term whereupon his Possession depends and the Plaintiff may take out two Executions one for his Costs and the other for his Possession Now if there be cause to stay the Possession there
to bring Ejectment de unâ Capellâ De Capella but it ought to be by the Name of a Messuage or House 11 Rep. 25. b. Ejectment de septem Messuagiis sive Tenementis De septem Messuagiis sive Tenementis it 's ill after a Verdict for the uncertainty Cro. El. 146. Ejectment de uno Messuagio sive tenemento vocat ' De uno Messuagio sive Tenemento vocat ' the Black Swan is good per Twisden for the last words ascertain it Had the Verdict been general for the Plaintiff for the Messuages and Non Culp ' for the Tenements it had been good And in this case the Plaintiff cannot aid himself by releasing of part as it might be had there been Lands in the Declaration De Messuagio sive Tenemento is ill after a Verdict but if the Judge will allow the Jury to find for the Plaintiff for the Messuage and for the residue for the Defendant it had been good but the Plaintiff may not aid himself by Release Siderf 295. Burbury and Yeoman Ejectione Firme lies not de Coquina De Coquina but it lies by Bill in B. R. tho' Coke said it lies by Writ too and the Law is all one 1 Roll. Rep. 55. It was adjudged in Stiles Rep. 215. That Ejectment doth lie of a Cottage De Cotagio because the Description of a thing by that Name is sufficient and certain enough to shew the Sheriff of what to deliver the Possession but a Recovery lies not of a Cottage Stiles p. 258. Hammond and Ireland Cro. El. 818. Hill and Gibs Ejectione Firme lies de Pomario De Pomario and de Domo for they are certain enough to give Possession tho' a Precipe lies not of it and many things are recovered in Ejectment which are not named in the Register as Hopyard c. Cro. Jac. 654. Royston and Eccleston Palmer 337. mesme Case Cro. El. p. 854. Wright and Wheatly Ejectione Firme de quatuor molendinis De molendinis without expressing whether they are Windmills or Water-mills yet good Mod. Rep. 9. Fitz Gerard's Case In Palmer and Humphrey's Case it was adjudged De pcciaterrae That Ejectment lies de pecia terrae but it was after reversed in the Exchequer-Chamber Cro. El. 422. Palmer and Humphrys And a Declaration de una pecia terrae continen ' ducentas unam Acram sive plus sive minus jacent ' inter terras c. this was adjudged ill after a Verdict and Nil cap ' per Billam entred So continen ' dimidiam acram terrae vocat ' It was said in Hancock and Pryn ' s Case Ejectment of a Close of Land or de pecia terrae containing so many Acres had been good W. Jones p. 400. Savil 176. Hardr. 57. Ejectione Firme cannot be of a Manor De Manerio for that there cannot be an Ejectment of the Services but if they express further a Quantity of Acres it is sufficient and it lies of a Manor or the Moiety of a Manor if the Attornment of Tenants can be proved and there is none that brings Ejectment of a Manor but they also add the Acres that contain it to the end that if they prove it not a Manor they may recover according to the Acres Vide infra Hetley 80. Norris and Isham And p. 146. Warden's Case It was doubted by Rolls and the Court De Crofto if an Ejectment lies de Crofto therefore the Plaintiff moved for a special Judgment for the rest of the Land contained in the Declaration and released the Damages as to the Croft and had it but afterwards in Meeres and French's Case it was agreed That Ejectione Firme lies of a Croft and Dower and Assise will lie of a Croft because it is put in View of the Recognitors tho' a Formedon nor Praecipe will lie of it but 2 Car. p. Rot. 301. Holmes and Wingreve de Crofto is ill in Ejectment tho' good in Assise Rolls Rep. p. 30. Ejectment de uno Clauso De uno Clauso without saying how many Acres is ill A Man makes a Lease of a Garden containing Three Roods of Land De tribus Roods of Land Lessee is ousted and brings Ejectment the Justices differed in Opinion whether it were good or not but all agreed the best order of Pleading to be to declare That he was ejected of a Garden containing Three Roods of Land Godb. p. 6. Parcella terrae does not comprehend a Garden in Ejectione Firme Parcella tarrae Moor 702. Palm 45. Ejectment de uno Clauso continen ' tres Acras per estimationem ill but Indictment quare vi armis in Clausum continen ' tres Acras per Estimationem fregit is good Debt or Demise of Seven Acres per estimat ' is ill Dormer's Case Brownl p. 142. Tho' in Co. 11 Rep. 55. Savill's Case That an Ejectione Firme lies not of a Close yet the contrary had been since adjudged between Hykes and Sparrow Tr. 15 Jac. Rot. 774. Cr. Car. 555. Siderf 229. Declarat ' is Quod cum dimisit to him unum Messuagium unum Clausum vocat ' Dovecoat-Close continen ' tres Acras eidem mâ—ssuagio spectan ' per Cur ' it does not lie of a Cloâ—e tho' coupled with other Words because the Quality of the Soil is not alledged as to say Land Meadow Marsh c. And by Coke if he had bound the Land without shewing the Quality it had not been good tho' it was objected that by all the Words put together here is sufficient certainty to put the Party in Possession and yet some Reports are to the contrary Ejectione Firme of a Close called White-Close was said to be held good in Ellis and Floyd's Case cited in Madonell's Case But in Ireland Ejectment was of a Close called the Upper Kibwell and of another called the Lower Kibwell containing Three Acres of Land was held good Regula And it is a sure Rule That the certainty of the Land ought to be described and the Quality c. And therefore the Case of Jones and Hoell seems not to be Law which was Ejectione Firme of Seven Closes one called Green Mead and so gave to the others several Names and the Verdict was for the Plaintiff and by the Court there it 's well enough For said they when a Name is given to every Close tho' the Contents of Acres are not mentioned viz. so many of Land so many of Pasture i'ts sufficient and aided by the Statute of Jeofayls 11 Rep. 55. Savill's Case 1 Roll. Rep. 55. mesme Case Cro. Jac. 435. Wilks and Sparrow 2 Roll. Rep. 1. 608 189. Macdonel's Case Cro. El. 235. Jones and Hoell In Martin and Nichol's Case Error was assigned It 's not distinguished how much of Pasture and how much of Meadow ergo ill because the Declaration was of a Messuage and Forty Acres of Land Meadow and Pasture thereunto appertaining and it was not distinguished how
much there was in Land and how much in Pasture and the Judgment was reversed Cro. Car. 573. Martin and Nichols Observe Acres according to Statute-measure In Ejectione Firme or a Praecipe of 100 Acres this is according to Statute-measure but if one bargain and sell 100 Acres of Land to another that shall not be according to the Statute-measure but after the usual Account in the Country in Andrews Case cited in Ewer and Heydon's Case The Declaration was De duabus acris fundi Anglice Hop-ground That he was ejected è duabus Acris fundi Anglicè Hop-ground Per Rolls it is good in a Grant but not in Declarations and the Anglice here does not help it for the Anglicè is not to interpret a Latin Name by which it is called Stiles Rep. 202 203. Meers and French Ejectment lies de decem Acris Pisarum for in common Acceptance Ten Acres of Pease De decem acris Pisarum and Ten Acres of Land sowed with Pease is all one 1 Brownl 150. Ejectment of Three hundred Acres of Waste De 300 Acres of Waste inter alia c. per Cur ' Waste is uncertain and may comprehend Land of any Quality and the Sheriff will be at a Loss what Land to deliver and after the Plaintiff released the Waste and Damages and took Judgment of the Residue Hardr. 57. Hancock and Prynn Ejectment lies de prima Tonsura of the first Crop De prima Tensura Cro. Car. 362. Ward Ejectment lies of a Cole-mine De Cole-mine for it is a Profit well known Ejectment of Land and a Colepit in the same Land ruled to be good because it is in a personal Action aliter in a Real Action because it is his petitum 1 Rolls Rep. 55. Cro. Jac. 21. Harbotle and Placock It lies of a Boillary of Salt-water De un Boillary of Salt Siderf 161. Ejectment lies not de rivulo seu aquae cursu De Râ—vulo aquae cursu therefore Godbolt p. 157. n. 213. is not Law nor a Precipe lies of it and Livery and Seisin cannot be made of it for non moratur non est firma but is always fluctuant and Execution by habere fac ' possessionem cannot be made of it but the Action ought to be of so many Acres of Land aqua coopert but if the Land under the River or Place appertains not to the Plaintiff but the River only then upon Disturbance his Remedy is only by Action on the case upon any Diversion of it and not aliter Yelv. 143. Challoner and Thomas M. 6 Jac. Challoner and Moor. Cro. Car. 492. Herbert and Llanghlyn's Case Ejectione firme lies not de Profit apprender De Profit apprender and so not of a Common or Rent nor of a Pischary it must be terra aqua cooperta in such a River tho' the Court seemed doubtful of it in Mâ—llineux's Case which was Ejectment of an House and Lands in T. nec non de Libera Pischaria infra Rivulum de Trent in which Action Damages were entirely given De Libera Pischaria but to avoid the Question the Plaintiff released his Damages totally and his Action quoad the Pischary and had Judgment for the Residue Cro. Jac. 146. Molineux Ejectment was brought in Ireland of forty Messuages De 100 Acres of Bogg Five hundred Acres of Land an Hundred Acres of Bogg in the Villages and Territories of D. S. and V. Bogg is an usual Word and well known there and if it were not the Plaintiff may release his Demand as to that and have Judgment for the Residue Another Exception was because it was in Villis Territoriis In villis territeriis but per Cur ' it 's well enough and of the same Sense and if not it is but Surplusage as to the Territories De 50 Acres of Mountain in Ireland but Ejectment of 500 Acres of Mountain in Ireland is ill for it is not of one Nature but several as Turfs Pasture but a Precipe is good de Saliceto de Stagno de Dominio by the general Notice the Country hath of them where the Lands lie and of their Quality On Ejectment in Ireland Error was brought in B. R. here because he brought Ejectment of 40 Acres of Wood De 40 Acris bosci 40 Acris subbosci and 20 Acres of Under-wood and so one thing twice demanded because Underwood is a Species of Wood sed non allocatur because this does not appear to the Court and this shall not be alledged for Error but ought to be taken in Abatement of the Writ Cro. Car. 512. Mulcarry and Eyres 2 Roll. Rep. 166 189. Macdonnel's Case 2 Rolls Rep. 487 482. Warren and Wakeley Ejectione Firme be omnibus Decimis is not good De omnibus Decimis De quadam portione D. 〈◊〉 it lies not de quadam portione Decimarum generally but de quadam portione granorum foeni is good the Nature ought to to be shewed though not the Certainty and the Ejectment was supposed in May when there is not any Tythes and so not good It may be that all the Tything consists in Modo decimandi for Payment of an yearly Sum in Satisfaction of Tythes whereof no Ejectione Firme lies It was a Question in Preist and Wood's Case Cr. Car. 301. Whether an Ejectione Firme lay of Tythes only it may be of a Rectory or such a Chapel and of the Tythes thereunto belonging whereof an Habere fac ' possessionem may be but it was adjudged pro Querente The Ejectment was supposed in taking so many Loads of Wheat and Barley being severed from the Nine Parts 1 Roll. Rep. 68. cited in Worral and Harper's Case 11 Rep. 25. Harper's Case Cro. Car. 301. Preist and Wood. Ejectment of so many Acres Jampnorum Bruerue De 20 Acris Jampnorum Bruere and does not express how many of each yet good Mod. Rep. 9. Fitzgerard's Case Ejectione Firme de una virgata terrae lies not De una Virgata terrae and so it was adjudged in the Exchequer-Chamber Error was brought of a Judgment in C. B. in Ejectment de Virgata terre on general Verdict which is ill being uncertain in every County but the Plaintiff below might have Released Damages as to that but now it is too late Cro. Eliz. 339. Jordan's Case 3 Keb. 450. Hall and Johnson Ejectione Firme lies not de Pannagio De Pannagio Q. de Parco Sid. 417. It lies de Herbagio De Herbagio 2 Rolls Rep. 481 482. Ejectione Firme was brought for Entry into a Messuage sive Tenementum and four Acres of Land to the same belonging Per Cur ' the Declaration is uncertain but it was said as to the four Acres it was certain enough and the Words to the same belonging are meerly void and the Plaintiff released Damages and had Judgment 3 Cro. 228. Wood and Pain Cr. El. 186. mesme Case
Ejectione Firme 21 P. PEDIGREE Where allowed to be Evidence or not 164 Pernomen where it is material 71 96 Pleadings in Ejectment 109 PLADINGS Of Pleading in Abatement 110 Of Pleading to the Jurisdiction 113 Conusance of Pleas how to be demandâ—d allowed pleaded ibid. Where Conizance of Plea not allowed in Ejectment 115 Pleading Ancient Demesne 106 Conclusion of Plea 118 Plea puis Darraine Continuance 119 Bar or Recovery in one Ejectione Firme â—ow far a Bar in another 126 127 Two Defendants one confesseth and the â—ther Pleads in Bar he cannot leave the one â—nd proceed against the other 126 POSSESSION A good Title in Trespass but not in Eâ—â—ctment and why 6 In what Cases the Party before Entry â—ath Possession and a Fine and Non-claim all Bar his Right 14 Possession in the Lessor of the Plaintiff â—â—st appear to be within 20 years 15 Long Possession good Evidence 170 Et postea how expounded 73 Procedendo denied because Bail was put B. R. 12 What is Evidence to prove Land parcel a Priory or not ibid. Priority of Possession where and how a â—od Title or not 179 Prout lex postulat How expounded in Special Verdicts 181 197 Where primer Possession makes a Disseisin 185 In Ejectment prior Possession a good Title against the King's Presentation not so in a Quare Impedit ibid. Mean Profits Action for the Mean profits and whaâ— Evidence shall be given in this Action 251 Whether Lessee may have Action for the Mean profits from the confession of Leaseâ— Entry and Ouster 254 Q. The nature of a Quare Ejecit infra Terminum and the difference between it and Ejectione Firme 9 R. RECOVERY Recovery and Execution pleaded in former Action 12 In Ancient Recoveries the Court will noâ— put one to prove Seisin in a Praecipe 15 What Evidence will serve to prove a Recovery ibid. What thing a Parson in the Ejectment 〈◊〉 a Rectory may prove 16â— RENT Upon Entry of the Grantee of a Rent and Retainer till satisfaction of the Arrears he may upon such Interest quousque maintain an Ejectment 23 RELEASE Where the Plaintiff in Ejectment may aid himself by Release of part 50 Release pleaded on a Special Verdict and day given for Argument 120 S. Deprivation for Simony disables from bringing Ejectment 18 Stat. 13 Car. 2. c. 11. expounded 28. Stat. 21 Jac. 13 Car. 2. c. Bail Stat. 16 17 Car. 2. cap. 8. Of Amendment 84 Stat. W. 2. c. 27 139 Stat. 8 Eliz. of Costs 221 Stat. 3 H. 7. 10. Of Costs 224 T. TRES PASS Difference between Trespass and Ejectione Firme 5 Conusance of Trespass includes not Ejectments 7 Possession a good Title in Trespass not in ectment and why 6 Colour in Trespass 7 TRIAL Ejectment to be tried where it is supposed the Lease to be made 12 Tenant at Will may make a Lease for years to try Title and so may a Copy-holder 23 How Trials below in Ejectment are to be brought 39 Stat. 27 H. 8. the Marches 141 Consent to alter Trial entred upon the Roll 142 Consent to a Trial in a Foreign County ibid. Where issue in Ejectment shall be tried in other County than where the Land lies 144 145 146 Of Trial by Mittimus in a County Palatine 146 Where the Issue in Tail is liable to execution on a Statute of Scire facias returned and he comes not in and pleads he shall not bring his Ejectment 21 Of Ejectment being brought by Cesty que Trust 23 How a Trustee may be a Witness in Ejectment 146 V. Variance of the Evidence from the Declaration what are material Variances or not 170 Variance as Times 172 Acres 173 Vills ibid. VENIRE Of the Venire in Ejectment 132 133 134 Where a Vill and a Parish shall be intended all one 155 Where it shall come de Corpore comitatus 136 The Wife found Not guilty and a Special Verdict as to the Husband which was insufficient Venire fac ' de novo was awarded and why 138 VERDICT In what Cases no Verdict shall be entered 140 Of exemplification of a Verdict 175 Of a General Verdict 177 Of Special Verdict ibid. Of finding Deeds in haec Verba 178 Seven or eight Rules of Special Verdicts 178 179 c. The Special conclusion of a Special Verdict shall aid the Imperfections of it 186 Diversities between a General Conclusion and a Special Conclusion 187 How a Special Verdict may make a Declaration good ibid. The Judges not bound by the Conclusion of the Jury except in Special Cases 188 Verdict to be taken according to intent vid. Intendment A General Conclusion depends upon all Points of the Verdict 189 Where the dying seised shall be intended 192 Jury find the Interest of the Land but shew not how 193 All Circumstances necessary shall be intended ibid. Difference between the Limitation and Condition of an Estate as to the finding by Jury 194 Finding the substance of the Issue as sufficient Verdict by presumption 197 Where and in what Cases Entry must be expresly found or not and of the force of the words prout lex postulat 197 Where actual Ouster must be found 198 Entry by a Colledge how to be found 199 Super totam materiam the effect of it 200 Of the Juries finding by parcel ibid. Jury finds part of the Issue and nothing for the Residue ibid. Of Surplusage in a Special Verdict 202 If the Verdict contain more than in the Declaration the Plaintiff may Release the Damages 203 Where the Jury may conclude upon a Moiety or not 184 Where a dying Seised or Possest must be found 204 If Incertainties in Special Verdicts 206 As to Persons Acres ibid. Place Time Quoad residuum the operation of those words in a Special Verdict 208 209 Of Verdicts in other Lease or Place than declared 212 It must be certain in what part the Plaintiff must have his Habere facias Possessionem aliter in Trespass 209 Where and in what Cases Special Verdicts may be amended Virtute cujus he entred and saith not when 46 Virtute cujus ijsdem die anno he entred 66 67 Virtute cujus pretextu cujus the difference 72 Omission of Vi Armis in the Declaration 98 Where the Party comes in by Limitation of use he must say vigore statuti 215 W. Action in nature of Ejectment brought in the Court Marches of Wales Prohibition granted 12 How Collateral Warrants may be given in Evidence 165 WITNESSES Who shall be good Witnesses in Ejectment 147 How a Trustee may be a Witness or not 146 Interest in Equity disables a Man to be a Witness 147 In what Cases Parishouses may be Witnesses ibid. One Coparcener cannot be Evidence for another in Ejectment ibid. Copyholder in Reversion after an Estate Tail Witness ibid. Trespassor of the Land no Witness ibid. Tenant at Will may be a Witness to prove Livery 149 Witnesses Sell part of the Land before Tryal 148 Father a Witness for the Son 149 In what Cases Attorney Sollicitor or Council or not to give Evidence against his Client 150 Vide Evidence WILL. Will under which a Title of Land is made must be shewed it self 158 What Evidence may or can be given against the Probate of a Will ibid. Bill of Exceptions on the Probate of a Will ibid. Ejectment by Original Writ 25 27 WRIT Amendment of Original Writs in Ejectment 20 Writ not to proceed Rege inconsult where it lies 12â— FINIS
Anno sexto supradict ' entred and ejected him so there is not any day mentioned After Imparlance as the Course in the Common Bench is the Plaintiff made a second Declaration and there without any space made the Ejectment is supposed to be the 26th of May Anno supradict ' and the Writ was brought of this Ejectment 7 Jac. The Defendant pleads Non Culp ' and found against him and Judgment and this was assigned for Error The first Declaration is most material per Cur ' the first Declaration is the principal and material Declaration and the second is but a Recital of the first And if any matter of Substance be omitted in the first it cannot be aided and amended by the second for that begins with an Alias prout patet so it is but a meer Recital and therefore if the first be not good tho' the second be good and he plead thereto and the Trial is thereupon yet the Judgment is erroneous But as this Case is the first Declaration is well enough for he declares of a Lease the 25th of March 6 Jac. which is the first day of that year and the Declaration quod pâ—stea scil ' 6 Jac. The Defendant ejected him is certain enough for the year wherein he made the Ejectment so it appears to be after the Lease made and in the same year 6 Jac. wherein the Ejectment was and the Action is brought the. 7 Jac. and the Ejectment being made between the making of the Lease and the Action brought it 's good enough tho' there is not any certain day alledged Cro. Jac. 311. Merril and Smith Original in Ejectment was brought against H. Simul cum and three others and the Plaintiff counts against three of the Defendants and no Simul cum against the fourth and Judgment was arrested for this 2 Brownl 129. It 's a sure Rule Entry and Ejectment supposed before the Commencement of the Lease if the Entry and Ejectment be supposed in the Declaration to be before the Commencement of the Lease the Declaration is void as in Powre and Hawkins's Case cited Yelv. 182. in Davis's Case The Plaintiff declares upon a Lease of E. 27 April Anno sexto and lays the Ejectment to be the 26th of April Anno sexto supradict ' the Declaration was adjudged ill for this cause but the Court will and have help'd it by as favourable Construction as may be as in the principal Case in Yelv. The Plaintiff declares of a Lease made by C. 6 of May Anno septimâ— of a Messuage c. and that the Plaintiff entred and was possessed quâ—usque postea the Defendant 18 die ejusdem mensis Maij Anno sexto supradict ' ejected him it was moved in Arrest of Judgment upon Verdict for the Defendant to save Costs that the Declaration was insufficient This Action is grounded on two things viz. the Lease and the Ejectment for that this Action was grounded on two things viz. upon the Lease and upon the Ejectment and these two ought to be one after the other and in this Case the Ejectment is supposed an Year before the Lease made for the Lease is Anno septimo and the Ejectment supposed to be made Anno sexto yet the Declaration was adjudged good and the word sexto to be void For the day of the Ejectment being the 18th day ejusdem mensis it shall be intended to be in the same year in which the Lease is supposed to be made Brownl p. 146. mesme Case So in Adams and Goose's Case Cro. Jac. 97. In Ejectment the Plaintiff declared of a Lease the 6th of Septemb. and that he was possessed and that postea scil the 4th of Septemb. the Defendant ejected him and by three Justices the Declaration was held good and the 4th of September is impossible and repugnant and the postea ejecit is well enough But in â—â—odgaine's Case 1 Siderf the Jury found that J. N. let to the Plaintiff for five years the 24th of June Anno 1650. by force whereof the Plaintiff enters the 24th of June 1650. the Lease being to commence à die datus and that postea scil 24th of June 1650. the Defendant ejected him so that the Entry and Ejectment was supposed before the Lease and Judgment was against the Plaintiff for this Defect The Council of the contrary side stood much upon the Case of Adams and Goose but per Cur ' that Case differs from this for in Adams's Case it appeared to be that he entred by sorce of the Lease and was possessed thereof till he was ejected but in this Case he entred the 24th of June which was before the Lease commenced and Judgment was given 1. Because he said he entred the 24th of June and so was a Dâ—isseisor 2. Because the Declaration is contrary in it self And Clifford's Case Dyer 89. a. and Grâ—en and Moody's Case were cired Bridgman said He found no reason for Adams and Goose's Case Yelv. 182. Davis and Pardy Cro. Jac. 97. Adams and Goose Siderf p. 8. Goodgaine and Wakefeild Ejectione Firme of a Lease of H. Virtute cujus iisdem die anno he ejected him how construed P. 22 of May 20 Jac. of c. Hab. à primo die Maij for three Years virtute cujus the Lessee entred and was possessed quousque postea scil eisdem die anno the Defendant ejected him It was assigned for Error that iisdem die c. refers to the first day of May which is ultimum antecedens and then the Ejectment is alledged before the Lease made so the Declaration not good but per Cur ' the Allegation of the first day of May is but for the beginning of the Term and the Declaration being quod virtute dimissionis he entred postea iisdem die Anno c. that refers to the day of the Lease made otherwise he cannot be possessed virtute dimissionis and Judgment was affirmed in the Exchequer Chamber Cro. Jac. 662. Rutter and Mills The common Mistake has been as is observable in our Book-Cases in laying the Lease to be à die daius and the Entry the same day which is a Disseisin not purged by the Commencement of the Lease for where an Interest passeth a is exclusive and so the Entry the same day was before the Lease was to commence and is a Disseisin but where no Interest passes as in Cases of Obligations Contra. In Douglas and Shank's Case Cr. El. 766. the Plaintiff declares of a Lease for years Habend ' à die datus virtute cujus dimissionis he entred Virtute cujus and was possess'd until he was ejected by the Defendant Not guilty pleaded The Declaration is ill because the time of the Entry is not alledged for if he entred at the day of the Demise he is a Disseisor and the Action not maintainable Virtute cujus how taken the strongest shall be taken against the Plaintiff viz. That he entred the day of the Lease made
and that is not supplied by the words virtute cujus but no Judgment was given because two against two yet in Dyer 89. in margine it 's said because he did not aver in facto that he entred after the day of the date for the Lease doth not commence till the next day that Judgment was arrested absente Popham And another case is there cited M. 44. or 42. El. B. R. in Ejectione Firme upon a Lease made to commence at Michaelmas and the Plaintiff declares That he virtute dimissionis c. And it was moved in Arrest of Judgment because he saith not he entred after Michaelmas And Dyer 89. was cited and Gaudy and Fenner held it ill but per Popham it is aided by the Statute of Jeofayis because it is Form only and the Demise is the Substance and per Popham after Michaelmas he is Termor by the Continuance of the Possession quod Fenner and Gaudy negaverunt But in Wakely and Warner's Case Ejectment was brough in Ireland and Judgment pro Querente Virtute cujus praetextu cujus he entred It was assigned for Error that the Plaintiff shews a Lease made to him to commence at a day to come virtute cujus he entred and was possest until ejected by the Defendant and shews not when he entred either after or before the day at which the Lease commenced sed non allocatur because he said virtute cujus c. But by Lea Chief Justice if he had said praetextu cujus it had been otherwise Moor 466. Ejectment of a Lease made the 12 of Dec. Commencement Habend ' à primo die On Not guilty the Jury find a Lease made in haec verba which was dated primo Decemb. Hab. from henceforth but delivered the 12th of Decemb. and the Question was Whether this be according to the Declaration It was objected That from the day of the Date and from henceforth are several Commencements for the one begins the day it was sealed the other the day after but per Cur ' they are all one being a Computation of time from the time past Habend à die datus expounded and both shall be pleaded to begin from the day of the Date when the Lease is afterward sealed another day But if he declares of a Lease the first of December Hab ' à die datus the Ejectment cannot be alledged the same day but if the Lease be made the first of Decemb. Hab. henceforth the Ejectment may be alledged the same day So was the Case of Osborn and Ryder Ejectment on a Lease made 1 Jan. 3 Jac. Hab. à die datus and the Ejectment was the same day and ruled to be good tho' the Hab. is as much as to say from the day of the Date but per Cur ' the Date is the time of the Delivery and it differs from the day of the Date wherefore the Ejectment alledged postea the same day is good enough Cro. Jac. p. 258. Lluellyn and Williams And p. 135. Osborn and Ryder Ejectione Firme of a Lease dated the 6th of December 17 Jac. Hab. à die datus upon Evidence the Lease was shewed and was dated the 6th of Decemb. 19 Jac. Hab. à die confectionis the Plaintiff was Nonsuited Cr. Jac. Scavage's Case The Plaintiff declares upon a Lease made the 10th day of October Hab. from the 20th day of Novemb. for five years the Question was upon a special Verdict Whether this was a good Lease or not Judgment was arrested It shall not begin from the time of the Delivery Uncertain Limitation of the Commencement of the Lease but it 's an uncertain Limitation and cannot be known what November he meant last past or next ensuing But the Law will reject an impossible Limitation as from the 31st of Septemb. because it cannot be any part of the Parties Agreement The Declaration was Quod cum J. H. by his Indenture bearing date the 20th of May 32 Eliz. No day of the Delivery shewed had let to him an House and shews not when the Lease was made for he doth not shew any day of the Delivery per Cur ' it's good For it shall be intended to be delivered at the day of the Date Mod. Rep. p. 180. 3 Leon. p. 266. Kniver and Cope In Ejectment of the Manor of D. Variance containing 250 Acres be it more or less with Letters of Attorney reciting Whereas J. the Lessor had made a Lease of a Manor containing 250 Acres and Authority to make Livery according to the recited Lease per Cur ' the Variance is fatal and the Plaintiff was nonsuited 3 Keb. 691. Smith and Talbot M. 18 Car. 2. Plaintiff declares In what Vill. That P. C. by Indenture apud S. let unto him an House and 20 Acres of Land by the Name of all the Tenements in S. After Verdict Judgment was Arrested because it was not alledged in what Vill the Tenements are Per nomen and the naming of the Vill in the Pernomen is not material Cr. El. 822. Gray and Chapman 50 Hobert 89. Rich and Shere Declaration was That at E. in Com' praedict ' he did demise one Messuage four Gardens Two hundred Acres of Land Eighty Acres of Pasture called East-Dizard in the said County On Not guilty the Plaintiff had Judgment it was Error because the Plaintiff in his Declaration did not shew in what Town Parish Hamlet or Place the said Tenement called East-Dizard lay and Judgment was reversed in the E◠chequer-Chamber Declaration was of a Lease of Serjeant Hele That he the 16th of January 44 El. by Indenture dated the 2d of January demised c. it was moved That the Declaration was not good because it is that he demised the 16th of Jan. by Indenture dated the 2d of Jan. When the Lease shall be intended to be delivered on the day of the Demise and not of the Date and he does not say primo delibat ' the 16th of Jan. for otherwise it shall be intended to be delivered the day it bears date But per Cur ' it's good for tho' a Deed shall be intended to be delivered the day it bears date unless the contrary be shewed yet when it 's said he demised such a day by Indenture dated such a day before it must be necessarily intended it was not delivered the same day it bears date but upon the day of the Demise as it is alledged Cro. El. 890. House and Laxton Cro. El. p. 773. Hall and Denby And the Verdict often aids and intends that it was delivered the same day it bears date as in Heaton and Hurleston's Case The Declaration was Whereas J. S. by Indenture the 9th of June 19 Jac. dimisisset c. Habend ' terminum praedict ' à die datus sigillationis Indenturae praedictae for three years virtute cujus the Plaintiff the 10th of June 19 Jac. entred and was possessed until c. and Verdict pro Quer ' on Not guilty