Array was challenged Challenge of the Array to the Lessor because it was made at the Nomination of the Plaintiff and by Consent of the Parties two of the Attorneys of the Court did try the Array The Trial of the Array is good either by the Coroners or by two Attornies Godbolt 428. Williams and Lloyd 2 Rolls Rep. 363 and 131. In Ejectione Firme on Non culp ' pleaded it is not any Challenge to the Array that the Sheriff is Cousin to the Lessor of the Plaintiff for it does not appear that the Title of him in Reversion shall be in question for peradventure the Lease is not well made or no Ejectment committed and he in Reversion is not any Party to the Action So in the said Case it shall not be any Challenge altho' it appear to the Court by Averment that this Lease was made only in Trust and to try the Title of the Plaintiff for the Cause aforesaid Note But now in our seigned Ejectments it is otherwise because the Title of the Lessor is only in Question 2 Rolls Abr. p. 653. Sir Edward Kempston and Banister Cradock Id. ibid. Ejectment for Lands in Sussex tried at the Bar the Defendant challenged the Polls for Default of Hundredors but did not shew it for Cause till the Pannel was perused Per Hale Chief Baron Challenge for Default of Hundâ—edors on Trial at Bar. It is against the common Course to take a Challenge for want of Hundredors when the Trial is at the Bar upon a Jury returned at the Denomination of an Officer of the Court where there are but four and twenty left by the Parties themselves But if this Challenge be taken to the Polls it must be taken presently and the special Cause assigned viz. want of Freehold there Hardr. p. 228. Attorney-General and Pickering in Scaccario In Ejectione Firme upon a Lease made in G. of Land in T. In G. praedict ' the Venue shall not be from G. but from T. for it shall be intended that T. is a Vill of G. 2 Rolls Abr. 620. Beachamp and Sampson The Lease is made apud Curdworth of Lands lying in parochia de Curdworth praedict ' the Issue was de Vicineto de parochia de Curdworth The Venire is well awarded praedict is such an Averment as that of necessity it must be taken that Curdworth the Town and Curdworth the Parish are all one and if so be the Venire fac ' is of the one or of the other it must be good But if the Parish be a larger Continent than the Town aliter because it cannot be intended that more Towns were in the Parish unless it were shewed on the other side and we are to judge by the Record which proves the Town and the Parish to be all one So in 43 and 44 Eliz. in Ejectment the Lease whereupon the Trial was had was made apud Abingdon of Lands lying in Burgo de Abingdon praedict The Venire was de Vicineto de Burgo de Abingdon praedict This is a good Venire for praedict makes this by Intendment of Law to be all one 2 Bustr 209. Vale and Field 2 Rolls Rep. 21. mesme Case Cro. Jac. 340. mesme Case In an Ejectione Firme The Issue of Not guilty refers to the Ejectment where the Land lies if the Plaintiff declare of a Lease made apud Ickworth of Land in Berry in Suffolk and Not guilty pleaded the Venire fac ' shall be from Berry and not from Ickworth for the Issue of Not guilty refers to the Ejectment which was where the Land lies 2 Rolls Abr. 619. Pell and Spurgeon The Award upon the Plea-Roll was against both Defendants Ven ' fac ' amended they both plead Non culp ' The first Process viz the Habeas corpora was against both but the Venire fac ' against one of them only one of them being named in the Trial and Verdict for the Plaintiff against both Defendants Per Cur ' the Venire fac ' was amended after Error brought because vitium Clerici 3 Bulstr 311. Cranfeild and Turner Ejectione Firme of Lands in D. and the Visne was from the Parish of D. The Vill and the Parish intended all one and Verdict pro Quer ' It was objected as Error for the Venue ought to be from D. and not from the Parish of D. for it may be the Parish extended into several Vills But per Cur ' it is well awarded for prima facie they shall be intended all one if it does not appear to the contrary by pleading and it shall not be intended to extend into several Vills Jones Rep. 205. Gilbert and Parker Moor 797 798 837. The Venire fac ' was de Vicineto parochiae de Bredon which was ill for the Lease and Ejectment are alledged to be at Bredon which shall be intended to be a Vill and the Lands are intended to be at Workington which also shall be taken to be a Vill in the Parish of Bredon so that it appears to the Court that there is a Town called Bredon a Parish called Bredon and Workington a Vill in the Parish of Bredon and the Tythes are alledged to be in Workington and Willesdon which also shall be intended a Vill in parochia de Bredon so that the Venue ought not to have been out of the Parish of Bredon Workington and Willesdon And though Workington and Willesdon are named Hamlets in the Pernâ—men yet the Court ought to adjudge upon that which is alledged by the Plaintiff in his Count 11 Rep. 25. 6. Harpur's Case Ejectione Firme versus B. for ejecting him of certain Lands in Creeting St. Marys Creeting St. Olaves and in Creeting omnium Sanctorum and the Venire fac ' was de Vicineto de Creeting St. Mary Creeting St. Olives and Creeting Omnium omitting Sanctorum the Court blamed the Clerk for his Negligence Winch. 34. Good and Bawtry In the Venire fac ' one of the Pannel was named Thomas Barker of D. and in the Distringas Jurat ' he was left out and Thomas Carter de D. put in his place and at the Nisi prius Thomas Carter was sworn and with others tried the Issue Per Cur ' there is difference between a Mistake in the Name of Baptism and in the Sirname Difference in Law between a Sirname and a Name of Baptism for a Man can have but one Name of Baptism but may have two Sirnames as George for Gregory and being sworn at the Nisi prius it 's a void Verdict Cro. El. p. 57. Displyn and Spratt Ejectione Firme of a Lease apud Denham in Lands of the Parish de Denham praedict ' the Venire was de Vicineto de Denham it 's good enough The Parish and Village are intended to extend and to be all one Cro. El. 538. Bedel and Stanborough The Venire fac ' was ad faciend ' Jurat ' in placito transgressionis whereas it should have been in placito Transgressionis Ejectionis
they were fined severally where the Ejectment was against them all joyntly but because they were found several Ejectors of several Parcels the Judgment was good scilicet quilibet capiatur quoad his Parcel and if it had not been joynt it had not been been sufficient Bendl. 83. Darcy and Mason The Plaintiff shall be in Misericordia but once The Plaintiff shall be in Misericordia but once As Ejectment with Force three of the Defendants were found Guilty of the House and ten Acres of Land and Not guilty for the Residue The fourth Defendant is found Not guilty generally And Judgment was entred That he should recover his Term in the House and ten Acres of Land and Costs against the three Defendants and that the said three Defendants capiantur and that they be acquitted quoad residuun and that the Plaintiff quoad the three Defandants pro falso clamore for so much as they were acquitted pro falso clamore against the fourth Defendant sit in Misericordia It s good enough and the course that the Plaintiff in such Cases be in Misericordia but once which is specially entred Crok Car. 178. Dockrow's Case In Croke and Sam 's Case Stiles 122. 346. The Judgments was ideo considerat ' est qd recuperet and there wants Def. capiatur it is Erroneous Form of the Entry in Case of the Death of the Plaintiff or Defendant Note That 3 Plaintiffs in Ejectment were and on general Issue it was found for the Plaintiffs One of the Plaintiffs died during a Curi advisare And 4 days after the Verdict given was moved to stay Judgment a Special matter in Law whereof the Justices were not resolved and gave day over and in the mean time one of the Plaintiffs died This shall not stay Judgment for the Postea came in 15 Pas which was the 16 of April at which Day the Court ought to give Judgment presently But Cur. advisare vult and on the 19 of April one of the Plaintiffs died and the favour of the Court shall not prejudice for the Judgment shall have relation to the 16 day of April at which time he was alive 1 Leon. 187. Isley's Case In Ejectment two Defendants were found Guilty The Death of one Defendant shall not abate the Writ and the other not The one that is Not guilty dies The Plaintiff shave Judgment against the other So it is if he that is Dead had been Guilty because this Writ is but as a Trespass where the Death of one Defendant shall not abate the Writ Moor 469. 673. Griffith and Lawrence's Case Ejectione Firme against Baron and Feme Ejectione Baron and Feme Baron dies And Verdict pro Quer. and after between the Verdict and day in Banco the Baron dies and therefore the Court in Lee and Rowley's Case 1 Rolls Rep. 14. advised the Plaintiff to relinquish this Action and only to enter the Verdict for Evidence for if Judgment is given against the Defendant and one is dead at the time of the Judgment then this will be Erroneous per Dodderidge and Mann Preignotary But Coke said The Plaintiff may make allegation that the Husband is dead and shall have Judgment against the Wife And it hath been adjudged lately Ejectment against Baron and Feme which are but one person in Law yet if the Husband dies the Suit shall proceed against the Wife Hardr. 61. But in Rigley and Lee's Case Cr. Jac. 356. Ejectment against Baron and Feme after Verdict Baron dies before the day in Banco because it is in the nature of a Trespass and the Feme is charged for her own fact Per Cur. The Action continues against the Wife and Judgment shall be entred against herself because the Baron was dead Ejectment against divers Record where not to be amended all plead Not guilty and divers Continuances were between them all where revera one of the Defendants was dead after Issue joyned and a Verdict was after found pro Quer. and the Record was moved to be amended Per Cur. we cannot do it After Verdict and before Judgment the Plaintiff may surmise that the Defendant was dead before the Verdict and Continuance was against him One Defendent dies after Issue joyned as in full Life Jones 410. Sir John Fitzherbert versus Leech And In Ejectment to try the Custom of Copyhold Suggestion entred on the Roll one Defendant being dead after Non-suit The Plaintiff was Non-suit and one of the Defendants being dead Hales Chief Justices advised to Enter a Suggestion on the Roll that one was dead else the Judgment for the Defendants on the Non-suit will be Erroneous as to all M. 23 Car. 2. B. R. Hawthorn and Bawdan Ejectment was brought against seven Ejectment against seven and one dies hanging the Writ and Error brought one dies hanging the Writ and the Judgment was given against the six without speaking any thing of the seventh where the Judgment ought to be against them that were in Life and a nil cap. as to him that was dead Otherwise there is a variance between the Writ and Judgment And a Writ of Error was brought but it was not well brought for the seventh joyned in the Writ of Error which was ad grave damnum of all the seven But had it been omitted ad grave damnum of him that was dead it had been good 2 Rolls Rep. 20. Bethell and Parry Pal. 152. Mesme Case In Hide and Markham's Case it was Ruled After Verdict and before Judgment the Plaintiff dies and Judgment his given for him the same Term. That if one bring Ejectione Firme in B. R. and there had a Verdict in a Tryal at Bar and after before Judgment he dies and after the Judgment is given for him the same Term this is not Error for that the Judgment shall relate to the Verdict But if the Verdict pass against the Plaintiff at the Nisi prius and after before the Day in Bank he dies and after Judgment is against him this is Error for as much as Judgment is given against a dead Man 1 Rolls Abr. 768. and Jurdan's Case ibid. The Plaintiff in Ejectment dies ' The Plaintiff dies after Verdict and Judgment was not staid and why Addison's Case Mod. Rep. 252. Yet as that case was the Court would not stay Judgment for between the Lessor of the Plaintiff and the Defendant there was another Cause depending and tried at the same Assizes when this Issue was tried and by Agreement between the Parties the Verdict in that Cause was drawn up but agreed it should ensue the Determination of this Verdict and the Title go accordingly Now the submission to this Rule was an implicit Agreement not to take advantage of such occurrences as the death of the Plaintiff whom we know no ways to be concerned in point of Interest and many times but an imaginary person Per Cur. We take no notice judicially that the Lessor of the Plaintiff
in Common by Baron and Feme By Joynt-tenants by a Corporation by Copyholder by Administrator CHAP. VII Where in the Declaration a Life must be averred and where it need not Of Delivery of Declarations at or after the Essoyn-day Declations when to be entred as of the same Term where the Copies need not to be paid for Declarations when amendable or not Of expressing the Vills where the Lands lie Of the Pernomen If it need to be of more Acres than the Plaintiff was ejected out of Of the Forms of the Declaration Vi Armis omitted Extr. tenet omitted The President of Declarations in B. C. in B. R. and in the Excheq The Indorsment of the Copy left with the Tenant and what the Tenant is to do thereupon The Rule of confessing Lease Entry and Ouster in C. B. and B. R. Affidavit in Ejectment to move for Judgment against the Casual Ejector CHAP. VIII What shall be a good Plea in Abatement in this Action Of Entry of the Plaintiff hanging the Writ Entry after Verdict and before the day in Bank After Imparlance no Pleading in Abatement and why Abatement because the Plaintiff shews not in which of the Vills the Land lies Ejectment against Baron and Feme Baron dies since the Nisi prius and before the day in Bank Of pleading to the Jurisdiction Conisance not allowable on Suggestion but it must be averred or pleaded How Prescription to the Cinque Ports to be made Ancient Demesne a good Plea in Ejectment and why It s a good Plea after Imparlance and why Of Plea of Ancient Demesne allowed the same Term and how Of Pleas puis darrein Continuance Entry puis darrein Continuance pleaded at the Assizes is resceivable and the Consequence of a Demurrer to this Plea Release of one of the Plaintiffs in a Writ of Error whom it shall bar Of Release puis darrein Continuance Plaintiff demurs to Plea of Entry puis darrein Continuance Quid Sequitur Accord and Satisfaction pleaded Aid prier and why the Defendant shall not have Aid pryer of the King aliter of a common Person A Writ not to proceed Rege inconsulto allowed Recovery and Execution in a former Action pleaded in Bar. Bar in one Ejectione Firme how a Bar in another CHAP. IX Of Challenge What is principal Challenge or not Of Elisors Of Venue VVhere the Parish and Vill shall be intended all one VVhere it shall not be de Corpore Comitatus VVhere the Venire fac ' is amendable Venire fac ' to the Coroners because the Sheriff was Cousen to one of the Defendants A Venire de Foresta Venire de Novo for Baron and Feme CHAP. X. XI Of Joyning Issue and Tryal In what Case no Verdict shall be Entred One Defendant Pleads Not guilty the other Demurs no Judgment upon the Demurrer till the Issue be tried Writ to Prohibit the Tryal Rege inconsulto Tryal in the Marches Consent to alter the Tryal New Tryal denied Of consent to a Tryal in a Foreign County Of Tryal in other County than where the Land lies Of Tryal by Mittimus in the County Palatine Who shall be good Witnesses in this Action or not Copy of a Deed. Deed cancelled Conditions Collateral Warrants found by a Jury What is good Evidence in Reference to a former Mortgage Where the probate of a Will is sufficient Evidence or not In Case of a Rectory what is good Evidence and what things the PaRson must prove Ancient Deeds Scirograph of a Fine Constant Enjoyment Evidence as to an Appropriation Deposition of Bankrupts Depositions in Chancery Transcript of a Record Inrolment of a Deed. Doomsday Book Of variance between the Declaration and the Evidence Of Demurrer to an Evidence ExEmplification of a Verdict Verdict Of a General Verdict Of Special Verdict Of Council subscribing the Points in Question Of finding Deeds in haec verba Eight Rules of Special Verdicts in Ejectment Of Estoppels found by the Jury and how they shall be binding What is a material variance between the Declaration and the Verdict Of Priority of Possession Where the Special conclusion of the Verdict shall aid the imperfections of it Where and in what Cases the Verdict makes the Declaration good Verdict Special taken according to intent Difference where the Verdict concludes Specially in one Point and where it concludes in General or between the Special conclusion of the Jury and their reference to the Court. Circumstances in a Special Verdict need not be precisely found Where the Judges are not bound by the Conclusion of the Jury Of certainty and uncertainty in Special Verdicts Of the finding Quoad residuum certainty or uncertainty in reference to Acres Parishes Vills and time of Verdicts being taken by Parcels How the Ejectment of a Manor to be brought Of a Verdict on other Lease or Date than is declared upon which shall be good or not Where a Verdict shall be good for part and void for the Residue The time of the Entry of the Plaintiffs Lessor where material Where the Jury ought to find an actual Ouster on him that had the right Prout lex postulat how to be understood Where and in what Cases Special Verdicts may be amended Where the Jury may conclude upon a Moiety or not Where a dying Seised or Possest must be found Where the commencement of an Estate Tail is to be found CHAP. XII Where the Defendant shall have Costs How the Plaintiff may aid himself by Release of Damages Executor not to pay Costs Lessor of the Plaintiff where to pay Costs Where Tenant in Possession liable to pay Costs or not Feme to pay Costs on the Death of her Husband Infant Lessor to pay Costs of the Writ of Enquiry the Entry If Writ of Error lies upon the Judgment before the Writ of Enquiry and why Writ of Enquiry how abated Costs for want of Entring Continuances Where the sole remedy for Costs in the first Tryal is to be had CHAP. XIII The Form of entring Judgments in this Action How the Entry is when part is found for the Plaintiff and part against him Qd. Def. sit quietus Quod Def. remaneat indefenss Against several Ejectors of form Of the Entry in case of the Plaintiff or Defendant One of the Plaintiffs died during a Curia advisare vult If the Death of one Defendant shall abate the Writ One Defendant dies after Issue joyned After Verdict and before Judgment the Plaintiff dies What Notice the Court takes of the Lessor of the Plaintiff Ejectment for the whole and a Title but for a Moiety how Judgment shall be In what Cases and for what Causes Judgment in Ejectments are Arrestable as Erreneous Judgment for the whole where it ought to be for a Moiety More Damages found than the Plaintiff Counts Judgment against Gardian and Infant Not severing intire Damages Against Baron and Feme quod capiantur Vi Armis omitted in the Declaration Plaintiff brings a Writ of Error and the Judgment is reversed
Traverse is good and the Bar is naught The Defendant in his Bar ought to have made his Distinction and every Plea which goes to the Jurisdiction of the Court ought to be taken most strong against him that pleads it and the Traverse here ought to be to the Town and not to the ubi which was idle for the Law said as much and we do not imagine any Fractions of Towns Winch. p. 113. Austin and Beadle Cro. Jac. 692. mesme Case Hutton p. 74. mesme Case Note He who would demand Conisance of this Plea ought to shew his Warrant of Attorney in Latin Sid. 103. in the Bishop of Ely's Case The Attorney General in Hales and Jull's Case prayed Allowance of the Plea Cinque-Ports that the Lands in the Ejectment were within the Cinque-Ports which the Court granted there being no Imparlance General or Special both which affirm the Jurisdiction of the Court and at the Venire fac ' the Plaintiff may suggest the Lands to be within the Cinque-Ports and have it of Places adjacent within the County 1 Keb. 65 Sir Edward Turner in Ejectment 〈◊〉 Conisance not allowable on Suggestion but it must be averred on Record ore tenus shewing his Warrant of Attorney demanded Conisance for the Bishop of Ely per Cur ' it's not allowable on Suggestion which is Cinque-Ports Ancient Demesne c. It must be averred on Record for tho' the Court takes notice that Ely is a Royal Franchise yet this must be so averred or pleaded and may be after Imparlance It must be averred or pleaded and may be after Imparlance in Ejectment when any third Person is concerned since the new way of Ejectment used in Green and Simpson's Case but Siderfin is contra that it cannot be pleaded after Imparlance 1 Keb. 946. 948. Sid. 103. The Defendant prayed to be admitted to plead in Abatement Where Conisance of Plea not allowed of in Ejectment that the Lands in the Ejectment are within the Cinque-Ports and the rather for that he was made Defendant by the Rule of Court with a special Imparparlance with a salvis omnibus c. Per Cur ' let him plead in Chief unless in Ancient Demesne no special Plea has been allowed because the Lord would be prejudiced in a Trial at Common Law 1 Keb. 725. Hale and Uppington In Hall and Hugh's Case in Ejectment of Lands Part within and part without the Cinque-Ports and demur part within and part without the five Ports the Defendant after Imparlance pleads in Abatement That part of the Lands are in the Five Ports and so prays Judgment si Curia cognoscere velit c. The Plaintiff demurs because it does not appear but that the Demise was out and it 's transitory and may be laid any where tho' the Lease was actually sealed in another Place or County and the Defendant may plead Non dimisit Where Non dimisit pleadeded in Ejectment as well as Not guilty The Demise in this Case was laid at Maidstone per Twisden this being an inferiour Court they cannot try the Demise which is issuable Why the new Rule of confessing Lease was introduced and the great Mischief that came in want of Proof of the Demise was the cause of introducing the new Rule In this Plea it was said That the Lands were in F. parcel of the Cinque-Ports where time out of mind the Writ of our Lord the King runs not and that they of F. have always tried c. this is ill Prescription must be to the five Ports and not to F. only for the Prescription should have been annexed to the Five Ports generally and not to F. only and the Court ordered him to plead in Chief and to confess Lease Entry and Ouster or else that the Plaintiff take Judgment against his own Ejector 2 Keb. 69 79. 1. Whether Ancient Demesne pleaded be a good Plea 2. Whether it may be pleaded after Imparlance In Cro. Car. 9. it was a Question Whether Ancient Demesne may be pleaded after Imparlance Ancient Demesne a good Plea in Ejectment and why It 's resolved That Ancient Demesne is a good Plea in Ejectione Firme and in Replevin tho' it was doubted in our Books formerly but that is fully setled in several Reports In Alden's Case 5 Rep. the Defendant pleads That the Tenements in which c. were parcel of the Manor of O. in Com. S. Quod quidem manerium est de antiquo Dominico c. and demands Judgment si Curia hic vult cognoscere c. The Plaintiff demurs and per Cur ' it is a good Plea 1. Because it 's the common Intendment that the Right and Title of the Land will come in Debate in this Action 2. In this Action the Plaintiff shall recover the Possession of the Land and have Execution by habere fac ' possessionem and this Action savours of the Realty So in Pymmock and Feilder's Case where the Pleading was nice the Defendant pleads that the Lands were Ancient Demesne and pleadable by a Writ of Right Close c. The Plaintiff shews that they were Copyhold Lands Parcel of the Manor and entitles himself by Lease under the Copyholder and traverseth That they were impleadable by a Writ of Right Close and it was thereupon demurred 1. Because Copyhold-Land parcel of a Manor of Ancient Demesne should be pleadable there and not at Common Law 2. Because this Traverse that they were impleadable is but the Consequence of Ancient Demesne Per Cur ' the Copyhold-Lands are as the Demesnes of the Manor and are the Lord 's Freehold and therefore not impleadable but in the Lord's Court and the Traverse is well enough taken 1 Bulstr 108. Cr. El. 826. 5 Rep. 105. Alden's Case Stiles 90. Cro. Jac. 559. Pymmock and Feilder Now a Lease for years is intended to be taken real in a Recovery and because a Lease for years intended to be recovered in Ejectione Firme it is a good Plea to say it is Ancient Demesne yet a Lease for years is but personal in Quality 2 Rolls Rep. 181. Banister and Eyres The Defendant imparles in Ejectione Firme Whether Ancient Demesne is pleadable after Impalance and after pleads that the Land is Ancient Demesne c. unde intendit quod Curia non vuit cognoscere c. The Plaintiff demurs Per Cur ' this Plea is pleadable after Imparlance because if Judgment be given here the Lord will reverâ—e it by Disceit and the Judgment will be avoidable and the diversity is true Regula A Man may plead that which is in Bar after an Imparlance but not that which goes to the Writ and this holds in all Cases but Ancient Demesne 2. The last Conclusion is Surplusage Conclusion of Plea but if he had begun his his Plea Actio non it had been ill notwithstanding the Conclusion ut supra But the Defendant waved his Demurrer without Costs and pleaded to Issue if Frank-fee
upon a Judgment in Banco in Ejectione Firme Of what Error the Court shall not take Conisance sans Certificate is certified a brief Entry of the Writ according to the Course there and then the Declaration at large and by the Recital of the Writ which mentions that the Action is brought de Rectoria de D. viginti Acris terrae duodecim Acris prati cum pertinentiis in D. And the Declaration is of a Lease by Indenture of the said Rectory and Tenements cum pertinentiis excepta terra pro mensa Vicarij ibidem cum omnibus talibus easiamentis quales Vicarius adtunc habuit cum omnibus talibus decimis c. And upon Not guilty a Verdict and Judgment was for the Plaintiff and assigned now for Error That Judgment was given pro Querente whereas it ought to to be for the Defendant And after in nullo est erratum pleaded it was moved for Error That it appears by the Record certified that the Writ is general of a Rectory and the Declaration is of a Rectory with certain Exceptions Variance between the Writ and Declaration In this Case the Court ought to reverse the Judgment for this Cause in as much as this is not assigned for Error nor the Writ it self certified so that the Court may not take notice that the Writ is as the Entry of it is certified and this Exception is but a Variance between the Writ and the Declaration and perhaps this Exception in the Declaration was but ex abundantia Declaration with an Exception and pleading in such Case and is not parcel of the Rectory and then he ought not to have demanded the Rectory with an Exception And it seems it had not been a good Plea for the Defendant in the first Action to say that it appears by the Declaration that there is an Exception c. without Averment in Fact that it is parcel of the Rectory Pas 11 Car. B. R. Gregory and Shepard on a Lease made by the Dean and Chapter of Peterborough Error upon a Recovery in Ejectment out of the Court of Durham The Error assigned was the Infancy of the Plaintiff in the Ejectment who appeared by Attorney where he ought to have appeared by his Guardian and upon Issue joyned on the Infancy it was found for the Plaintiff in the Writ of Error But this Writ of Error was not sufficient to the Court to proceed to the Reversal Variance between the Record and the Writ of Error 1. Because the Writ of Error is directed to the Bishop of Durham and others by Name to remove a Record of Ejectment between such and such which was coram the said Bishop and seven others by Name and the Record removed seems to be a Record of Ejectment before the Bishop and eight others so it is not the same Record specified in the Writ for a Record before eight and a Record before seven cannot be intended the same Record 2. This Writ of Error is directed to the Bishop of Durham and six others by Name and the Retorn of the Writ viz. Respons ' of the Commissioners is by the Bishop and five others only without making mention of the sixth Commissioner Yelv. p. 211. Ode and Moreton 2 Rolls Abr. 604. In Ejectment Verdict was given pro Quer ' quoad ill ' parcel ' Messuagij praedict ' jacen ' proxim ' ad Messuag ' modo F. N. continen ' ex Boreal ' parte c. quoad resid ' pro Def. and the Judgment was quod Quer ' recuperet terminum suum praedict ' de C. in praedict ' parcel ' praedicti Messuagij jacen ' proxim ' ad praedict ' Messuag ' ut praefertur in occupatione praedicta F. N. continen ' whether this Variance between the Verdict and Judgment be Error Adjournat ' Qu. if it be not a Jeosayl deins Art Stat. 16 17 Car ' 2. c. 8. Raym. p. 398. Norris and Bayfeild Ejectione Firme against two Death of one Defendant dying after Issue pleaded and before Verdict if after Issue joyned and Venire fac ' awarded one of the Defendants dies and after a Verdict is given at the Nisi prius for the Plaintiff and after before Judgment the Plaintiff â—â—rmiseth the Death of the one ut supra and prays Judgment against the other and Judgment given accordingly without any Answer to it by the Plaintiff if it be not true that he is dead as was surmised this may be assigned for Error for in as much as the Plaintiff had made this Surmise it being a matter of Fact and the Plaintiff might not have any Answer to it the use not being to enter â—up this that the Plaintiff does not deny it the Plaintiff had no other Remedy but to assign this for Error But this is reported otherwise p. 767. 1 Rolls Abr. 756. Tiffin and Lenton If A. bring Ejectione Firme against B. and C. and after Issue joyned B. dies and after upon the Hab. Corpora which mentions the Issue to be between A. of the one part and the said B. and C. a Verdict is given against B. and C. that they are guilty and Damages against them but a Surmise is made of this before Judgment and so Judgment given only against C. this is not erroneous altho' the Verdict was against both in as much as the Judgment was only against him who was in life 1 Rolls Abr. 767. Tiffin and Lenton If A. Nonage in Issue upon Error where to be tried recover against B. in Ejectione Firme in D. upon which B. brought a Writ of Error in B. R. at Westminster and discontinues it and after there brought a new Writ of Error quod coram vobis residet and assigns for Error That the said A. at the time of the Tryal of the first Action was commorans and within Age at Westminster in Middlesex and that he sued in the said Action by Attorney and upon the Nonage the Parties are at Issue this shall be tried in Westminster and not in D. where the Land lies because the Ejectione Firme is not any real Action and in as much as it is specially alledged that he was within Age and commorans at VVestminster when the Writ of Error was brought 2 Rolls Abr. p. 604. Orde and Moreton Error of a Judgment in Ireland in Ejectment was assigned Deins Age. that the Plaintiff then Defendant was per Attornat ' and within Age Judgment was reversed notwithstanding 17 Car. 2. c. 8. vide 3 Keb. 384. D. of Albermarl and Keneday In Ejectment one of the Defendants pleaded Not guilty and Verdict for the Plaintiff against both and Judgment accordant Error was brought because in the Venire Constantinus Callard was retorned and so named in the Distringas 〈◊〉 by Release but in the Pannel annexed thereto Constantius Callard was retorned and sworn and so was retorned by that name on the back of the Postea this was held manifest Error for they be distinct
Ejectment by Executors Infant-Lessee of Simonist On Elegit On undue Extent and in case of holding over By Intruder by the King's Lessee by a Person Outlawed by Lessee of Bail on Extent by Judgment against the Principal by Issue in Tail liable to a Statute who comes not in and pleads to the Sc ' fac ' on Entry if the Grantee of Rent with Proviso for Retainer till Satisfaction of Arrears by Cesty que Trust by Vendee of Commissioners of Bankrupt THE next to be handled is In what Cases this Action lies and in what not whereby the Reader may be so well informed as not to hazard his Client's Cause and his own Reputation Note If the Heir bring an Ejectment and the Ancestor dies subsequent to the Action he shall not recover because every one shall recover only according to the Right which he hath at the time of the bringing his Action in Wedywood and Bayley's Case Raym. 463. It has been laid down for a constant Rule in our Books In respect of Possession That upon a Possession in Law a Man shall never maintain an Ejectione Firme but he ought to have actual Possession at the time of the Ouster as if Tenant for years makes a Lease at will and the Tenant at will is ejected the Question was in Stone and Grubham's Case 1 Rolls Rep. 3. if the Tenant for years for this Ejectment of his Lessee at will shall have an Ejectione Firme and it was resolved that he should not So if Lessee for years be the Remainder for years the Lessee for years is ousted his Term expires he in Remainder for years cannot have an Ejectione Firme because he had no actual Possession at the time of the Ejectment So if a Lease for years be made and before the Lessee enters a Stranger enters he shall not have this Action And upon this Reason of Law it is that by the new Rule of Practice the Defendant shall confess Entry and Ouster but it has been resolved That if Inquisition upon Elegit be found the Party before Entry hath the Possession and a Fine with Nonclaim shall bar his Right for before actual Entry he may have Ejectione Firme or Trespass and it is not like to an Interesse Termini In Smith and Rawlin's Case no Entry was proved to be by Dean and Chapter since 1631. yet in regard Rent had been actually paid there the Lessee may bring Ejectment without any Lease actually sealed on the ground 2 Keb. 127. Smith and Rawlins Possession of the Lessor of the Plaintiff must appear to be within Twenty years though the special Verdict be on another Point so Keb. 364. but 32 H. 8. c. 2. extends not to Common but the Reversion in the King will priviledge the Lessor of the Plaintiff being but a Lessee for ninety nine years against such want of Possession 3 Keb. 681. M. 28 Car. 2. B. R. Piggot and the Lord Salisbury Lessee for years shall only have this Action N. B. 120. F. He whose Entry is not congeable by Law In respect of Entry congeable cannot have Ejectione Firme as in case of a Formedon in Remainder and Discontinuance Lessor grants the Reversion to A. Lessee Attorns A. ousts him Lessee shall have Ejectione Firme N. B. 221. a. 1 H. 5. 3. pl. 3. The Action of Ejectment is maintainable if it appear by special Verdict that any former Lease made by the Lessor que c. be in force 1 Rep. 153. Rector of Chedington's Case How Copyholder or his Lessee shall bring an Ejectment Ejectment by Copyholder or his Lessee there have been uncertain Opinions in our Books but the Law therein stands thus Lessee of a Copyholder for one year shall maintain Ejectione Firme in as much as his Term is warranted by the Law by force of the general Custom of the Realm and it 's but Reason if he be ejected that he shall have an Ejectione Firme and it 's a speedy course for a Copyholder to have Possession of the Land against a Stranger but in the Guardian of the Monastery of Otlery's Case cited it was objected That if Ejectment be maintainable by Lessee of a Copyholder as it was adjudged in B. 4 Leon. p. 18. C. then if the Plaintiff recover he should have an Habere fac ' possessionem and then Copyholds should be ordered by the Common Law 4 Rep. 26. Cr. Eliz. 676 717. Erithe's Case Moor 709. Stoner and Gibson Leon. p. 118. The Lessor for years of a Copyhold which is made without Licence of the Lord By Lessee of a Copyholder without Licence of the Lord. may maintain an Ejectione Firme because he is Lessee against all but the Lord and the Lease is good between the Lessor and Lessee and against all Strangers but not against the Lord and so in Hardres's Rep. p. 330. The Lease of a Guardian or Copyholder will maintain the Declaration in Ejectment though void against the Lord and Infant And therefore Jackson and Neale's Case in Cro. El. 394. seems not to be Law which was The Licence to a Copyholder was to lett for twenty one years from Michaelmas last past he makes a Lease for twenty one years to begin at Christmas following to the Plaintiff who entred and being ousted by the Defendant brings an Ejectione Firme the Court was of Opinion That the Lease not being warranted by this Licence no Ejectione Firme lies upon it But in Petty and Evans's Case in Ejectione Firme brought by the Lessee of a Copyholder Declaration by Copyholder in Ejectment it is sufficient that a Count be general without mention of the Licence and if the Defendant plead Not guilty then the Defendant ought to shew the Licence in Evidence but if the Defendant plead specially as in those times it was usual then the Plaintiff ought to plead the Licence certainly in the Replication and the Time and Place when and where it was made 2 Brownl 40. Petty and Evans In Ewer and Astwick's Case it was doubted by the Court and so in several other Cases in former times Whether the Plaintiff in his Declaration ought to set forth the Custom of the Manor that the Copy-holder may Lease Copyholder in his Declaration need not set forth the Custom c. and then to shew that the Lease is warranted by the Custom But now it 's fully agreed That the Plaintiff ought not to shew that the Lease is warranted by the Custom but that shall come on the other side and so is the Practice not to declare on the Custom Rumney and Eve's Case 1 Leon. p. 100. It has likewise been a Question Ejectione Firme by Copyholder before Admittance or Presentment and where not without Admittance Whether one ought to be admitted before he can maintain this Action but it is resolved in Rumney and Eve's Case if customary Lands do descend to the younger Son by Custom and he enters and leaseth it to another who takes the Profits and after
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
of the Land by the Defendant this was adjudged a good Entry for the Land in both the Villages per totam Curiam So of Lands in one County Palmer 402. Argoll and Cheney The Corporation of Mercers were seised of the Lands in Question By Corporation in the several Possessions of Two Men and being so seised made a Deed of Lease to the Plaintiff and a Letter of Attorney to deliver the Deed and the Possession The Attorney entred upon the Possession of one of the Men and there delivers the Deed and after enters in the Possession of the other and there doth deliver the Deed the Question was If it were good for the Land for which the second Delivery was because one Deed cannot have two Deliveries but the Court held it shall be intended the first Delivery was good for all and it shall not be intended but that the two Men had Possession only as Tenants at Will to the Corporation and then the Delivery of the Lease in one place is good for all and it shall not be intended they had an Estate for Years or Life except the contrary be shewed Baron and Feme joyn in a Lease by Indenture to B. By Baron and Feme rendring Rent for Years and make a Letter of Attorney to seal and deliver the Lease upon the Land which is done B. brought Ejectment and declares of a Demise made by the Baron and Feme and upon evidence to the Jury it was ruled per Cur ' That the Lease will not maintain the Declaration for a Feme covert cannot make a Letter of Attorney to deliver a Lease of her Land but the Warrant of Attorney is meerly void so that this only is a Lease of the Husband which is not maintained by the Declaration But Hopkins's Case in Cro. Car. 165. is against this where the Plaintiff declared of a Lease made by Baron and Feme On Not guilty it appeared on the Evidence that the Lease was sealed and subscribed by them both and a Letter of Attorney made by them to deliver it upon the Land Per Cur ' it 's a good Letter of Attorney by them both and the Lease well delivered and it is a Lease of them both during the Husband's Life Yelv. Wilson and Rich. 2 Brownl 248. Plomer's Case Cro. Car. 165. Hopkin's Case 2 Leon. 200. CHAP. V. Of the Rule of confessing Lease Entry and Ouster and Rules of Court relating thereunto Of Refusal to confess Lease Entry and Ouster and the Consequence Of how much the Defendant shall confess Lease Entry and Ouster In what Cases there must be an actual Entry and where it is supplied by confessing of Lease Entry and Ouster Rules concerning ones being made Defendant and of altering the Plaintiff and of the Ejectment-Lease HOW necessary the Knowledge of this Practice is to one who would manage his Client's Cause with Discretion and Success is sufficiently apparent and needs no further Recommendation It must be observed as was adjudged in the Mayor of Bristol's Case that there Ejectment in Inferiour Courts or in any other Inferiour Court they cannot make Rules to confess Lease Entry and Ouster as in the Courts of Westminster but they must actually seal the Lease as at Common Law And so it was in Sherman and Cook 's Case where it was moved That the Defendant who by Habeas Corpus had removed an Ejectment out of the Sheriff's Court might consent to a Rule of Court that he should confess Lease Entry and Ouster but the Court refused the Defendant not being bound by the Rule below because they cannot proceed by way of delivering Declarations to the Tenants in Possession but as at Common Law by actual Lease sealed Tryals below how And by Hyde all the Tryals below are tried in the casual Ejector's Name by him that is Tenant in Possession to avoid Charge P. 16 Car. 2. B. R. M. 16 Car. 2. B. R. Where the Freeholds are several Where the Freeholds are several the Plaintiff must sever his Action and one Defendant gives a Note of what is in his Possession the Plaintiff must sever his Action else the Defendant might lose his Costs for which on severance he would have legal Remedy And here is no Inconvenience because the Plaintiff may take Judgment against his own Ejector for the rest and the Defendant shall not confess Lease The Defendant not to confess Lease Entry and Ouster for any more than is in his own Possession Entry and Ouster of all but only of so much as is in his own Possession which is the only way to save his Costs And Medlicot's Case was where the Plaintiff's Title is one by the Demise of A. and the Defendant's several the Plaintiff offered to secure Costs severally to all but he was ordered by the Court to deliver several Declarations that none may defend for more than is in his own Possession else the Plaintiff might clap in an Acre of his own to save Costs and Agreements of Parties are no Guide to Rules but would make the Court but Arbitrary and this Rule is no hindrance of Tryals at Bar where many Defendants have but the same Title Tr. 21 Car. 2. B. R. Medlicot's Case In Ejectment the Ouster was confessed of a third part of a fourth part of a fifth part in five parts to be divided which by Hide is very inconvenient The Inconvenience of the new Course of leaving Declarations and crept in since the new Rule of leaving Declarations the Lands being in several places distinct from each other and may be held by several Titles which could never be had the old Course of actual Ejectment continued but on suggestion that the Title was but one and one Plaintiff and one Defendant it was admitted M. 15 Car. 2. B. R. Cole and Skinner In Ejectment where there are divers Defendants who are to confess Lease Entry and Ouster if one doth not appear at the Tryal the Plaintiff cannot proceed against the rest but must be nonsuited 1 Ventr In Ejectment the Plaintiff shewed Copy of four Acres In what case the Court will give leave to retract the general Confession of Lease Entry and Ouster to save Costs the Title being on Will or no Will but not being able to prove where particularly the Court gave leave to the Defendant that claimed by the Will to retract the general Confession of Lease Entry and Ouster as to this and to have Judgment against the casual Ejector M. 27 Car. B. R. Hide and Preston If the Defendant refuse to confess Lease Entry and Ouster the Rules are thus Where the Defendant was by Rule of Court at the Tryal which was to be at the Bar to appear and confess Lease Of the Defendant's Refusal to confess Lease Entry and Ouster Entry and Ouster and to stand upon the Title only yet at the Tryal he would not appear upon which the Plaintiff was Non-suit and yet Judgment was for the Plaintiff
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
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
or not And yet Hetley saith p. 117. It was agreed by all that Ancient Demesne is a good Plea in Ejectment but not after Imparlance Marsham and Allen's Cas Dyer 210. in margine But now if a Man come in and pray to be made Defendant and to plead specially Ancient Demesne he shall do it and it 's now used of Course to plead Dilatories after Imparlance New Defendant not to plead Ancient Demesne after the former Imparlance 1 Keb. 361. Holiday's Case But in 1 Keb. 706. by Windham the new Defendant one that prays to be made so may plead Ancient Demesne after the former Imparlance because it 's not any Ouster of the Court of Jurisdiction Cur ' e contra He ought to plead Not guilty personally Roch and Plumpton's Case And in 1 Keb. 755. Plea of Ancient Demesne allowed the same Term Snow and Cooley The Court will allow Plea of Ancient Demesne the same Term contrary to the ordinary Rules in Ejectment And in Sutton and Courtney's Case it was prayed by Council That the Defendant might have Liberty to plead Ancient Demesne to a Declaration delivered before the Essoyn of this Term And how as of last Term which the Court granted and ordered him to attend the Scondary to settle the said Plea which is usually done by making the Plaintiff deliver a new Declaration as of this Term and so the Plea cometh quasi before Imparlance 2 Keb. 725. In David and Lyster's Case Rolls said Ancient Demesne is a good Plea after Imparlance for it goes in Bar of the Action it self and not in Abatement of the Writ Stiles 90. Plea puis darrein Continuance Ejectione Firme was brought for entring into three several Vills Release puis darrein Continuance before the Justices of Nisi prius they can not take it The Declaration makes mention of no Vill in certain The Defendant pleads a Release puis darrein Continuance before the Justices of Nisi prius Per Cur ' a Man cannot plead a Release at the Nisi prius after Issue joyned for so none should have Judgment When this Plea is pleaded the Justices of Nisi prius cannot proceed to take the Inquest and to this Plea of the Defendant the Plaintiff cannot there reply but he ought to reply in Bank After Issue joyned and a Venire fac ' awarded in such a Vill the Sheriff returns null tiâ—l Vill this is not good for he cannot return that thing which is contrary to the Issue to avoid the Trial à fortior ' one of the Parties cannot plead such matter at the Nisi prius the Authority of the Justices of the Nisi prius is to take the Verdict of the Jury and no other Plea And the Justices of the Nisi prius have no power to amend any Fault in the Declaration and when the Sessions end their Authority ceaseth Vid. Cro. Jac. 261. contra 10 H. 7. 21. 1 Bustr 92. Moor and Brown Yelv. p. 180. 1 Cro. Jac. 261. In Ejectione Firme against two one appears and pleads the General Issue and Process continues against the other who now appears and pleads Entry puis darrein Continuance in Abatement of the Writ Upon which the Plaintiff demurs and after Issue was found for the Plaintiff Demurrer a Confession of the Entry he shall not have Judgment for the Demurrer is a Confession of the Entry and shall abate his own Writ for in this Action the Term is to be recovered aliter if he had imparled Vide supra Plea in Abatement Dyer 226. Upon a Special Verdict in Ejectment Release pleaded at the day of the Argument and a day given for Argument before which the Defendant procures a Release of all Ejectments and at the day for the Argument pleaded the Release puis darrein Continuance and good aliter of a Release between the Nisi prius and Day in Bank because there he had no day in Court nor has he any Remedy but by Audita Querela if the Plaintiff sued Execution 2 Rolls Abr. 467. Wykes and Bunbury Cr. Jac. 646. Stamp and Parker Ejectment was brought of Lands in K. and two other Villages Entry puis dar ' Cont ' pleaded at the Nisi prius the Plea is receiveable The Defendant pleads Not guilty and at the Nisi prius pleaded That the Plaintiff puis le darrein Continuance entred into a Close parcel ' praemissorum and him expelled and a Demurrer upon it because he declared not in which of the Villages the Close lay Per Cur ' this Plea is receivable for it is matter in fait and peremptory to him who pleads it for as a Release or matter in Bar may be pleaded so may this and is receivable at the Discretion of the Justices if they perceive any Verity therein So is Rolls Abr. 630. Moor and Hawkins Cr. Jac. 261. Yelv. 180. Moor and Hawkins 1 Brownl 145. In Ejectione Firme the Defendant may plead at the Assises before the Justices of Nisi prius That the Plaintiff had entred into parcel of the Land mentioned in the Declaration puis darrein Continuance the Justices of Nisi prius may accept the Plea and dismiss the Jury and tho' they do not give any day to the Parties in Banco yet this is not any Discontinuance altho' that the Plea be collateral for the day of Nisi prius and day in Bank are one day For the Court in Bank gives day to the Jurors in Bank Nisi prius Justiciarii ad Assissas venerint and to the Parties day is given there absolutely 2 Rolls Abr. 630. Moor and Hawkins 1 Rolls Abr. 485. Sir Hugh Brown's Case In Ejectione Firme By this Plea the first Issue of Not guilty is discharged after pleading Not guilty a Release is pleaded puis darrein Continuance whereby the first Issue is discharged which the Court granted And tho' the Justices cannot try it at Nisi prius unless they think it but Colour and insufficient yet if he think it sufficient he must sign a Bill of Exceptions for the Trial is Error and so Yelv. Bill of Exception 181. And in this Case the Release of the Lessor of the Plaintiff is but Colour Also the Party cannot demur to such Plea also the Agreement to try and stand to the Title only is no Cause to over-rule such Plea and per Cur ' the Plea certified hither was allowed notwithstanding such Agreement being gained after 3 Keb. 67. Mich. 24. Car. 2. Carter and Haggard Accord and Satisfaction a good Plea in Ejectment H. P. brought Ejectione Firme against R. C. and A. his Wife and A. D. for an House in G. in c. upon Demise made by A. H. the 7th of April 8 Jac. for five years and that the Defendant the 10 of April in the same year ejected him c. The Defendant pleads That after the Trespass and Ejectment viz. primo Maij Anno octavo supradicto apud G. praedict ' talis inter R. C. praefat ' H. P. tam
but not for another and new Ejectment Recovery in one Ejectione Firme a Bar in another And in Godbolt's Rep. Case 128. in Trespass the Defendant pleaded that at another time before the Trespass he did recover against the same Plaintiff in Ejectione Firme and demanded Judgment Per Cur ' it is a good Plea prima facie and that the Possession is bound by it for otherwise the Recovery should be vain and ineffectual And by Anderson If two claim one and the same Land by several Leases and the one recovereth in Ejectione Firme against the other that if afterwards the other bringeth an Ejectione Firme of the same Land the first Recovery shall be a Bar against him Per Rhodes a Recovery in an ad terminum qui praeteriit shall bind the Possession Godb. p. 109. no. 128. 3 Leon. 194. In Trespass for breaking his Close the Defendant pleads before this he had brought Ejectione Firme against the now Plaintiff and recovered and had Execution Judgment si actio Per Cur ' in 1 Leon. 313. Kempton and Cooper's Case and 3 Leon 194. the same is a good Bar and the Conclusion of the Plea is also good Judgment si actio without relying on the Estoppel and by two Justices it is no Estoppel for the Conclusion shall be Judgment si actio and not si serra respond ' and it was well pleaded For as by Recovery in Assise the Freehold is bound so by Recovery in Ejectione Firme the Possession is bound And by Anderson a Recovery in one Ejectione Firme is a Bar in another especially if the party relieth upon the Estoppel and altho' it be in an Action personal and in the nature of a Trespass yet the Judgment is good habeat possessionem termini sui during which Term the Judgment is in force and it 's no reason he should be ousted by him against whom he recovered for so Suits would be infinite but this grave Advice is now laid aside 4 Leon. 77. Spring and Lawson Note In Ejectione Firme against two Defendants one confesseth the Action and the other pleads in Bar Non Culp ' per Cur ' tho in Trespass against two 2 Defendants one confesseth the other pleads in Bar he cannot leave the one and proceed against and the one makes Default and the other confesseth the Action he may well relinquish his Suit against him who makes Default and proceed against the other which confesseth or pleads in Bar because this Suit is only in point of Damages but not so in Ejectment he cannot relinquish his Suite against one and proceed against the other for if so any Man may be tricked 2 Bulstr 113. Expiration of the Term in Ejectione Firme is no Plea Latch 106. Upon a Trial at Bar between Odil and Terril a Juror was challenged for that he said to one of the parties Provide you to pay for if I am sworn I will give the Verdict against you And that this is true the Parties to whom the Words were spoken did offer to depose the same and the Question was if he should be suffered to swear this he being one of the parties and he was allowed by the Court to be sworn to prove the Challenge good the other The Juror had bought Land of the Eessor and for this Cause the Triers found him not to be indifferent and so he was withdrawn Another Juror was challenged in this case for that he had bought Land of one of the parties in the Suit viz. of the Lessor and that the Lessor did owe to this Juror 10 l. and notwithstanding this Challenge the Triers found him indifferent otherwise per Cur ' if the Juror had owed Money to one of the parties 1 Bulst 20 21. Odil and Terril CHAB IX Of Challenge What is Principal or not Of Elisors Of Venue Where the Parish and Vill shall be intended all one Where it shall not be de Corpore Comitatus Where the Venire fac ' is amendable Venire fac ' to the Coroners because the Sheriff is Cousin to one of the Defendants A Venire de Forrest Venire de Novo for Baron and Feme BY Coke in Guest and Bridgman's Case Cousin to the Lessor it 's not a principal Challenge that the Sheriff is Cousin to the Lessor in Ejectment for the Lessor cannot hinder the Action of the Lessee this is not Law 1 Rolls Rep. 328. 2 Rolls Rep. 181. Banister's Case Venire fac ' awarded to the Coroners upon Surmise that the Lessor was Servant to the Sheriff Lessor Servant to the Sheriff Q. if it be a principal Challenge if it be no principal Challenge then is not the Writ well awarded and is not aided per Stat. 32 H. 8. Cro. Jac. p. 21. Harebotle and Placock Challenge to the Sheriff The Sheriff Cousin to the Plaintiff and a Venire fac ' prayed to the Coroners because the Sheriff is Cousin to the Plaintiff and shews how and because the Defendant did not deny it a Venire fac ' was awarded to the Coroners and Judgment was arrested because it was not a principal Challenge and a Venire de Novo awarded to the Sheriff 1 Brownl 130. Cradock and Jones It is not any principal Challenge to a Juror in Ejectione Firme That he had married the Cousin-german of A. That a Juror had married the Cousin-german of A. who was the Wife of R. from whom is descended H. from whom is descended B. who have the Reversion of the Land in question after the Death of his Mother who is to had an Estate for Life this is not any princapal Challenge because the Estate of B. does not appear in the Record and he had not the immediate Reversion 2 Rolls Abr. 654. Gabriel Dennis's Case In the Lord Brooks's Case the Court was informed That rhe Lessor of the Plaintiff was High Sheriff of the County and that the Coroner was Under-Sheriff Elisors and it was prayed that that Elisors might return the Jury but the Court would not grant it at the Prayer of the Defendant though the Plaintiff offered to agree to it it being in a Trial of Nisi prius but had it been in a Trial at Bar the Court would have granted it That the Lessor of the Plaintiff is High-Sheriff a principal Challenge but the regular Course is for the Plaintiff to pray it or else the Defendant may challenge the Array at the Assises for it is a principal Challenge that the Lessor of the Plaintiff is High-Sheriff or of Kindred to the Sheriff Tr. 1657. Hut 25. Moor 470. Rolls Rep. 320. 15 Car. 2. B. R. Duncomb and Ingleby In Ejectment the Plaintiff suggesteth that his Lessor the Sheriff and Coroners were Tenants to a Dean and Chapter Elisors whose Interest was concerned and prayed the Venire fac ' to Elisors and had it being confessed by the Defendant and the Court took it as a principal Challenge Duncomb and Inglesby's Case In Ejectione Firme the
or Will and so the Jury may find them the Deed or Will not being found in haec verba Stiles p. 34. Wright and Pindar A Deed made before the time of Memory A Deed made before time of Memory Ancient Deed. may be given in Evidence tho' it cannot be pleaded An ancient Deed is good Evidence without proving or Seal to it P. 17 Car. 2. B. R. Wright and Sherrard A Will Will. Probate under which a Title of Land is made must be shewed it self and the Probate is not sufficient Contra if it were on a Circumstance or as Inducement or that the Will remain in Chancery or other Court by Special Order of such Court 1 Keb. 117. Eden and Thalkill 2 Rolls 678. So is Brett's A Probate of a Will by Witnesses for Lands is not Evidence at Common Law And nothing can be given in Evidence against the Probate of a Will but Forgery of it or its being obtained by Surprize and so it 's conclusive Raym. 405. Error was brought of a Judgment in C. B. in Ireland in Ejectment The Question was upon a Bill of Exception for that the Justices of the Bench there would not direct the Jury Bill of Exceptions on the Probate of a Will that the Probate of a Will before the Archbishop of Canterbury the Testator dying in his Province and also the Bishop of Fernes were sufficient and conclusive Evidence but only affirmed it was good Evidence leaving it to the Jury To which the other Party shews in Evidence Letters of Administration of the Goods under Seal of the Primate of Ireland The Title was for a Lease for years in Ireland claimed by the Lessor of the Plaintiff under the said Administrator And Judgment was affirmed Per Curiam Where Bills Answers Depositions c. in Chancery shall be good Evidence in this Action or not In Ejectment the Defendant that made Title as a Purchasor under a Devisee Bill preferred by the Heir against the Devisee setting forth the Will and shewed only a Bill in Chancery preferred by the Heir under whom the Lessor of the Plaintiff claims against the Devisee whereby the Will was set forth and confessed in the Answer But per Curiam it is no Evidence tho' a Possession were proved accordingly in the Devisee and that this had been confessed by the Plaintiff in a former Tryal 2 Keb. 35. Evans and Herbert And yet in 1 Ventr p. 66. A Bill in Chancery was said to be given in Evidence against the Complainant On a Tryal in Ejectment it was shewed for Evidence That the Defendant P. was guilty of Simony for giving 100 l. per Annum to M. the Patron and to prove this they shewed a Bond conditioned to pay 100 l. per Annum generally And they say That an Action of Debt was brought against P. and P. had preferred his Bill in Chancery to be relieved against this Bond and by it disclosed that it was entred into for the Cause aforesaid But to that it was Answered That P. was presented by G. but it appeared that G. acted as a Servant to M. the Patron and it was opposed Where a Copy of a Bill shall be read as Evidence That this Bill is no Evidence because it only contains Matter suggested perhaps by the Council or Sollicitor without the Privity of the Party But per Curiam the Copy of the Bill shall be read as Evidence for it shall not be intended it was preferred without the Privity of the Party and it being disclosed by the Party himself otherwise they would not allow a Bill in Evidence if there be not Answer and other Proceedings upon it Siderf p. 220. Dr. Crawley's Case But at a Tryal the Plaintiff to prove his Bond offered a Bill by the Defendant in Chancery which Keeling Chief Justice held good Evidence as in the Parson of Amersham's Case Dr. Crawley where a Bill by P. a Simoniac to be relieved against his Bond was admitted against himself this being the Drift of the Bill and not any particular Allegation But the Court would not allow it Where an Answer in Chancery shall be good Evidence at a Tryal or not In a Tryal at Bar between Mills and Bernardiston an Answer of L. M. surviving Trustee under whom the Plaintiff claimed was offered for Evidence but being after a Conveyance by him the Court refused but had it been before it would be good against all claiming under him Answer ' good Evidence against the Defendant himself but not against other Parties But Twisden denied it because an Answer does not discover the whole Truth and therefore shall be only admitted against the Party himself that made it and not of one Defendant against another much less against a Stranger 2 Car. 2. B. R. And by Ley Chamberlain and Dodderidge a Defendant's Answer in an English Court is a good Evidence to be given to a Jury against the Defendant himself but it is no good Evidence against other Parties Godb. Case 418. 2 Rolls Rep. 311. Berisford and Phillips And if the Defendant's Answer be read to the Jury it is not binding to the Jury and it may be read to them by the Assent of the Parties Godb. 326. An Infant answered a Bill in Chancery by his Guardian Infant 's Answer by Guardian not to be read in Evidence against the Infant and it was a Question in Leigh and Ward 's Case in a Tryal at Bar in Ejectment where the Infant was Party whether that Answer could be read in Evidence against the Infant This Question was sent from the King's Bench by Justice Eyres to the Common Pleas to know their Opinion and per totam Curiam it could not be read for there is no Reason that what the Guardian swears in his Answer should affect the Infant 2 Ventr 1 William and Mary Where and in what Cases Depositions shall be read at a Tryal and where not Regularly the Depositions in Chancery or Exchequer Depositions no Evidence if the Party be alive of a Witness shall not be given in Evidence if he be alive But if Affidavit be made that he is dead they shall in a Cause between the same Parties Plaintiffs and Defendants Godb. p. 193. Sir Francis Fortescue Depositions taken in Chancery in perpetuam rei memoriam Depositions no Evidence without an Answer put in upon a Bill for that purpose exhibited cannot be given in Evidence in a Tryal at Law unless there be an Answer put in and produced Hardr. 336. Raymund Watts's Case Depositions taken before Commissioners of Bankrupts Depositions before Commissioners of Bankrupts no Evidence at a Tryal shall not be used as Evidence at a Tryal altho' the Witnesses be dead but Depositions taken before the Coroner with Proof that the Party made them if dead shall be good Evidence P. 18 Car. 2. Bick and Browning Exemplification of Depositions under the Great Seal Exemplificat ' 〈◊〉 Depositioâ—â— 988. whereby a Conveyance made
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
Cost 1 Ventr 124. Adminstrator brought a Writ of Errorupon a Judgment given in Ejectment against the Intestate Per Cur ' he shall pay no Costs tho' the Judgment was affirmed and the Writ brought in Dilatione executionis 1 Ventr Writ of Inquiry It was assigned for Error That a Writ of Enquiry of Damages was awarded and no day given to any of the Parties to be there at the time of the Retorn The Entry for the Entry ought to be Ideo dies datus partibus praedictis or at least to the Plaintiff that so he might then pray his Judgment sed non allocat ' for the Defendant is not to have day and the Plaintiff is to attend at his Peril and so is the Course of the Common Pleas aliter in the King's Bench Cro. El. p. 144. Mathew and Hassel E. in Ejectione Firme had Judgment by Default against the Defendant whereupon a Writ of Enquiry issues out to enquire of the Damages and before the Retorn thereof the Defendant brought a Writ of Error the Question was Whether the Writ of Error were well brought in regard the Course of the Common Pleas is not to make up the Judgment until the Writ of Enquiry be retorned Rolls said A Writ of Error may be brought before the Writ of Enquiry be retorned in Ejectione Firme for in that Action the Judgment is compleat at the Common Law before it be retorned for the Judgment is but to gain Possession and so it is in a Writ of Dower But in an Action of Trespass where Damages are only to be recovered there the Judgment is not perfect till the Writ of Enquiry be retorned nor can be made up as in this Case it may But in regard that here is no compleat Judgment for there is no Capias which ought to be in all Actions Quare vi armis that the King may have his Fine which else he cannot have if the Party do not proceed in his Writ of Enquiry the Writ of Error is brought too soon and you may proceed to Execution in the Common Pleas for the compleat Record is not here Afterwards in another Case Rolls was of Opinion That it was a perfect Judgment and it is in your Power said he to the Defendant's Council whether you will have a Writ of Enquiry or not and if the Judgment be affirmed here upon the Writ of Error brought you may have a Writ of Enquiry in B. R. the Council therefore moved for a Certiorari Rolls take it but it will do you no good for the Judgment is well Stiles Rep. Glide and Dudenu's Case p. 122. Crook and Sanny Stiles 127. The Writ of Error lies upon the Judgment before the Retorn of the Writ of Enquiry and why This Point is setled now in both Courts In Ejectione Firme if the Plaintiff recover by Nihil dicit in which Judgment is given that the Plaintiff shall recover his Term and a Writ is awarded to enquire of Damages a Writ of Error lies upon this Judgment before the Retorn of the Writ of Enquiry of Damages and Judgment upon it for the Judgment is perfect as to the Recovery of the Term before by the first Judgment and the Plaintiff may presently have Execution for the Possession and peradventure he never will have Judgment for the Damages and so the Defendant shall be ousted of his Possession sans Remedy So it is if a Man recover in Ejectione Firme by Confession or non sum informatus or Demurrer a Writ of Error lies before the Damages taxed by Writ of Enquiry 1 Rolls p. 750 751. Newton and Terry Taverner and Fawcet Booth and Errington 5 Rep. Wymarth and House and Layton Latch p. 212. Council prayed Abatement of a Writ of Enquiry on 16 and 17 Car. Abatement by Death after Judgment or pendant Error but not after Affirmance 2. c. 8. by Affidavit of Cesty que vie's Death after the Judgment two days and by the Act from the Judgment affirmed in Error which was a Term after which the Court granted But it were better the mean Profits were recoverable in Ejectment by the same Verdict Wild held this should be given in Evidence on the Writ of Enquiry but being no Bar but in mitigation that is not sufficient and it was staid Warren and Orpwood M. 25 Car. 2. B. R. 3 Keb. p. 218. CHAP. XIV Of Judgment in Ejectment and Execution The Form of entring Judgment in this Action How the Entry is when part is for the Plaintiff and part against him How against several Ejectors The Form of the Entry in case of Death of the Plaintiff or Defendant After Verdict and before Judgment the Plaintiff dies Ejectment for the whole and no Title but to a Moiety For what Causes Judgments in Ejectment are arrestable or erroneous In what Cases Judgment shall be amended Of Judgment against ones own Ejector NO Judgment in Ejectment till Latitat filed Note and Bail 2 Keb. 743. The Form of entring Judgments in this Action In Cr. Quod recuperet possessionem termini El. 144. Matthew and Hassel's Case It was assigned for Error That the Judgment was Quod recuperet possessionem termini praedict ' where it should be Quod recuperet terminum for as in a Real Action he is to recover Seisin so in a Personal he is to recover Possession and the Writ is habere fac ' possessionem 1 Leon. p. 175. mesme Case All the Course of Entries How the Entry is when part is made pro Quer ' and part against when part is found for the Plaintiff and part against him is to enter only Quod Def. eat inde sine die quoad c. whereof he is acquitted It was Taylor and Woldboro's Case Cr. El. 768. Error of a Judgment in Ejectment was brought because the Defendant was found Not guilty quoad a third part and the Judgment is entred thereupon Quod Def. eat inde sine die quer ' in misericordia c. whereas it ought to have been Quod le Plaintiff nil capiat per Billam for that third part sed non allocatâ—r causa qua supra Cro. El. 768. and the Court would have affirmed the Judgment but because the Plaintiff had not appeared that Term they caused him to be nonsuited In 1 Rolls Rep. Quod Def. sit quietus 51. Error was assigned because the Judgment in Ejectione Firme in Wales was Quod Def. sit quietus such Judgment being only given in a Writ of Right and such Actions which are final but this Action is not final and the Judgment should be Quod Def. eat inde sine die Sir William Morris and Cadwallader's Case In Ejectione Firme Quod Def. remaneat indefens ' if upon Non sum informatus pleaded Judgment be given Quod Def. remaneat indefensus without saying versus querent ' yet its good 1 Rolls Abr. 772. Fiegot and Mallory Ejectment was against several Defendants Against several Ejectors c.
is the Party interested What notice the Court takes of the Lessor of the Plaintiff and therefore we punish the Plaintiff if he Release the Action or Release the Damages It was said too in behalf of the Judgment That there was a Man of the same name in the County with him that was made Plaintiff And by the Court that is sufficient and the Court shall intend it to be him were there any one of the same name in rerum natura It is said in Cooper and Franklin's Case Ejectment for the whole and a Title but to a Moiety Judgment shall be for the whole If one brings Ejectione Firme for the whole having Title but to a Moiety that iâ— hath been adjudged against Bracebridges's Case in Plowd He shall have Judgment for a Moiety 3 Bulstr 185. In what Cases and for what Causes Judgments in Ejectment are Arrestable or Erroneous In Savern and Smith's Case Judgment for the whole where it ought to be for a Moiety Judgment was de integris tenementis where it ought to have been for a Moiety The Judgment was given for the whole and intire Damages assessed by the Jury It s Error Croke Car. 7. The Declaration was Qd. per Indentur dimisit decimas garbar Rectorie de c. una cum quodam horreo gardino eidem Rectorie pertin And the Judgment on Demurrer on the Plea was Ideo c. qd praed Querens recuperet vers praefat Def. terminum suum praedict adhuc ventur ' de in Rectoria horreo gardino praed More Damages found than the Plaintiff counts cum pertin damna sua And more Damages is found in the return of the Inquisition than the Plaintiff counts And the intire Rectory was not Let and no Term supposed in it in the Declaration but in the said three particulars and no express Judgment is given for the Tithes and Damages are assessed for the expulsion of the intire Parsonage of which there was no complaint It seems its Erroneous Dyer 258. Plow 19. 1 Bulstr 49. 10 Rep. 117. 3 Cr. 544. Ejectione Firme was brought against four Against Gardian and Infant qd capiantur whereof one was an Infant and appeared by his Guardian and Verdict was pro Quer. and Judgment against them quod capiantur But no such Judgment ought to be against an Infant and its Error and Judgment was reversed Cr. Jac. 274. Holbrook and Doyle's Case C. Infant appeared be Attorney One of the Defendants at the time of the Judgment was within Age and appeared by Attorney where it ought to have been by his Guardian the Judgment being upon Verdict Per Cur. Its Error and in regard Damages and Costs are intire the Judgment shall be reversed for both by the Stat. 21 Jac. 13. Judgment shall not be Arrested for that the Plaintiff in any Ejectione Firme or in any personal Action being under Age did appear by Attorney and the Verdict did pass for him Judgment was reverst in Error of a Judgment in C. B. Not severing and intire Damages in not severing for what part by number of Acres by Special Verdict and giving entire Damages to the Plaintiff 2 Keb. 250. Mâ—â—kworth and Thomasin Ejectione Firme was against Baron and Feme Versus Baron and Feme quod capiantur tho' the Baron be found Not guilty On Not guilty pleaded the Feme was found guilty and the Baron Not guilty and the Judgment was against Baron and Feme quod capiantur This was assigned for Error but the Plaintiff had Judgment for so are all the Presidents But in the Writ it was vi armis Vi armis left out in the Declaration and in the Declaration vi armis was left out and for this cause Judgment was reversed Cro. Car. 406. Mayo's Case In Ejectione Firme Writ of Enquiry of Damages without saying Quod capiatur if Judgment be given upon Demur or by Default or on Non sum informat for the Plaintiff to recover the Term but it 's awarded that there shall be a Writ of Enquiry of Damages without saying Quod capiatur this is erroneous for it may be he will never enquire of the Damages and make Retorn of it and then the Fine due upon the Capiatur will be lost 1 Rolls Abr. 769. Note On Not guilty pleaded Issue is joyned and a Special Verdict found and upon this Verdict Judgment given against the Plaintiff and after the Plaintiff brings a Writ of Error Plaintiff brings a Writ of Error and the Judgment is reversed What Judgment he shall have and in this the Judgment is reversed the Plaintiff shall have Judgment to recover his Term his Declaration being good and the Law being for him on the Special Verdict For the Court which reverseth the first Judgment ought to give the same Judgment which was given in the first Suit 1 Rolls Abr. 774. Omalcowr and Eyres Note also If before Judgment the Years of the Lease expire the Plaintiff had Judgment to recover Damages Before Judgment the Lease expires the Plaintiff shall have Judgment for Damages otherwise in Actions where Freehold is to be recovered Savile 28. In what Cases Judgments shall be amended The Jury find the Defendant guilty of Ten Acres Twenty Acres entred for ten Acres and the Judgment was entred of Twenty Acres the Judgment was amended Winch. p. 8. If on Non culp ' pleaded a Verdict is for the Plaintiff and Costs and Damages given and upon this the Judgment is Quod quer ' recuperet the Damages and Costs and not quod recuperet terminum Quod recuperet terminum left out as the use is this is the Default of the Clerk and so amendable 1 Rolls Abr. 206. Belsh and Pate The Clerk of the Entries of the Judgments had mistaken the Parcels Variance of Parcels the Jury having found several Ejectments in several Parcels they find S. had ejected him out of certain Parcels by a certain Name Amendment and T. had ejected him out of other Parcels by a certain Name and mistook that S. had ejected him out of the Parcels that T. had ejected him having the Distringas for his Direction But it was amended for the Entry was quod recuperet versus S. unum Messuagium c. which was the Ejectment made by T. and so vice versa whereas the Court's Judgment was quod Judicium intretur pro Quer ' In Ejectione Firme of one Messuage two Cottages and certain Lands and the Jury find the Defendant guilty of the Moiety of a Messuage and Lands and Not guilty of the two Cottages and of the other Moiety of the Messuage and Lands and Judgment is quod Quer ' recuperet Terminum suum praedict ' de medietate tenementorum praedictorum eat inde sine die for the residue and this Judgment altho' it may be intended that Judgment is given for the Moiety of the two Cottages Default of the Clerk
in Fine and Nonclaim the Fine must be shewed with Proclamations under Seal ibid. Copy of a Recovery given in Evidence ibid. Inspeximus how far it is Evidence ibid. Transcript of a Record or Inrolment of a Deed may be given in Evidence and how 154 Evidence as to Matters of Fait 157 Who to shew the Original Deed in Evidence 155 Where a Deed shall be proved by Testimony without shewing it 156 A Deed cancelled by Practice may be shewed in Evidence ibid. Copies where Deeds are burnt good Evidence ibid. Copy out of a Leiger-book no Evidence 152 Copy of a Counterpart allowed to be Evidence ibid. Thô Seals be broken off yet a Deed may be given in Evidence ibid. Where Copies of Court-Rolls may be given in Evidence ibid. A Will under which a Title of Land is made must be shewed it self 158 Where Bills Answers Depositions shall be good Evidence 159 Where Copy of a Bill shall be read in Evidence 159 160 Where an Answer in Chancery shall be good Evidence or not Where and in what Cases Depositions shall be read at a Tryal or not 162 Exemplification of Depositions if Evidence ibid. Decree or Decretal Order where allowed to be Evidence 164 Pedigree where allowed to be Evidence or not what Matter may or must be pleaded and what Matter may or must be given in Evidence 165 Condition to defeat a Freehold found by Jury ibid. What Evidence the Jury shall have with them after Evidence given 166 What shall be good Evidence to make a Title 167 Evidence as to an Appropriation 168 VVhere constant enjoyment is good Evidence ibid. VVhat is good Evidence to prove Lands parcel of a Priory or not 170 VVhat Evidence shall be said to maintain the Issue ibid. Estoppels found by Jury and how 165 A Man ousts the Executors of his Lessee â—r years what Remedy EXECUTION Execution in Ejectment 230 How Execution shall be where there are two Defendants one confesseth and the other is found Not guilty Execution on Recovery by Baron in Ejectment of the Wife's Term 239 If a Man recover in Ejectment against J. S. who after dies he must sue Execution against his Heir for by intendment J. S. his Ancestor was a Disseisor ibid. Extent of a Rectory on Elegit 169 Remedy against undue Extent on Elegit by Ejectment 19 Exemplification of a Verdict 175 ERROR Of what Error the Court shall take Conisance without Certificate 257 Variance between the Writ and Declaration ibid. Variance between the Record and the Writ of Error 258 Nonage in Issue upon Error where to be tried ibid. Amendment of the Judgment before a Certiorari awarded in Error 262 Release of Errors from one of the Plaintiffs in the Writ of Error shall only bar him that released it and why ib. Outlawry of one of the Defendants pleaded in Error 263 Error without Bail a Supersedeas ibid. Release by casual Ejector a Fraud 265 266 Error in Ireland 268 G. Difference between a Guardian and Prochein Amy 30 H. Habere fac ' possessionem how to be executed 242 How the Sheriff is to esteem the Acres 243 VVhere Delivery of one Messuage by the Sheriff in the name of all is good or not ibid. How the Sheriff is to give Possession of a Rent or Common ibid. Hab. fac possessionem is good without Retorn 244 How awarded into Ireland ibid. In what Cases and when a new Hab. fac possessionem may be awarded 244 245 Not to be granted after a Year without Motion 248 Of Misdemeanor in giving Possession 249 I. Inspeximus how an Evidence or not in Ejectment 153 INTENDMENT Reversion shall be intended to continue 190 Where a Lease shall be intended to be in being 191 VVhere a Dying seised shall be intended 192 Incertainty in Special Verdict Vid. Verdict Writ of Inquiry in Ejectment and the Entry 224 Stranger may enter notwithstanding Judgment in Intrusion â—7 Judgment in Intrusion what ibid. Ejectment by Joyntenant 75 Of Issue in Ejectment 139 JUDGMENT Judgment against ones own Ejector when to be entred 240 No Judgment against the casual Ejector but by Motion 104 No Judgment upon Nihil dicit but upon Motion 239 In what Cases and for what Causes Judgments in Ejectment are erroneous 233 Judgment was reverst for not severing by number of Acres and yet entire Damages 234 Plaintiff brings a Writ of Error and Judgment is reversed what Judgment he shall have 235 In what Cases Judgments shall be amended 236 After Judgment the Court of Equity would not relieve in case of a Mortgage 239 Writ of Error lies upon the Judgment by Nihil dicit before the Retorn of the Writ of Inquiry and why Chap. Judgment The Form of entring Judgments in Ejectment 227 How the Entry is when part is pro Quer ' and part against him ibid. Judgment against several Ejectors 228 The Plaintiff shall be in Misericordia but once 229 One of the Plaintiffs died during a Curia advisare vult it shall not stay the Judgment 230 Suggestion to be entred on the Roll one Defendant being dead after Nonsuit 231 After Verdict and before Judgment the Plaintiff dies and Judgment given for him the same Term 232 Of pleading to the Jurisdiction 113 JURY Another Person sworn on the Jury who was not retorned no Error lies because an Estoppel 136 What Evidence the Jury shall have with em after Evidence given 166 Jury find the Interest of the Land came to the Lessor but shew not how 193 K. Lessee of the King may bring Ejectione Firme tho' the King be not put out of the Freehold 20 L. Of the Ejectment Lease 46 The Defendant not to confess Lease Entry and Ouster for any more than is in his Possession 39 In what Cases the Court will give leave to return the General Confession of Lease Entry and Ouster 40 Of the Defendants refusal to confess Lease Entry and Ouster and the consequence 40 41 Where the Confession of Lease Entry and Ouster shall supply an actual Entry or not 42 43 The Term in the Ejectment Lease enlarged 46 After Default in Ejctment the Defendant may confess Lease Entry and Ouster Lease to Try a Title no Maintenance 47 Ejectment brought on a Lease made the â—ame Term ibid. Commencement of Leases 68 69 70 Where the Lease shall be intended to be delivered on the Day of the Demise and not of the Date 71 Lease not warranted by the Declaration 83 Why the new Rule of confessing Lease Entry and Ouster was introduced 115 Lease recited in the Release was admitted to be proved by Witnesses to the Release without shewing the Lease it self 156 What notice the Court takes of the Lessor of the Plaintiff 233 Jury find Virtute literarum patentium and find not the Letters Patents under Seal 19â— M. Ejectment of a Manor how to be brought 52 201 Manor in Reputation 196 The Defendant in Ejectment not to give in Evidence a former Mortgage made by himself 169 O. Person Outlawed may bring