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-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-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
it was ruled to be Error in the Exchequer-Chamber in the Bishop of Landaff's Case A Tryal by Consent in other County than where the Land lies is good in Ejectment But in Sir Thomas Jones's Rep. Devoren and Walcot's Case it is held That a Tryal by Consent upon the Roll in other County than where the Land lies is good in Ejectment 1 Rolls Abr. 787. 2 Keb. 260. Sir Thomas Jones 199. Devoren and Walcott In an Ejectione Firme in London upon a Lease made of Lands in Middlesex Tryal in London of Lands in Middlesex if the Defendant plead Not guilty this may be tried in London because the Counties may not joyn altho' the Jury ought to enquire of the Ejectment which was in Middlesex 2 Rolls Abr. 603. Herbert and Middleton But in Flower and Standing's Case in Ejectment Moved in Arrest of Judgment that the Lease was made at B. of Lands in another County and the Plaintiff was not in Possession it was moved in Arrest of Judgment That the Lease is made at B. of Lands in another County which was moved to be ill it appearing that the Plaintiff was not in Possession sed non allocatur for this is matter of Evidence and it shall be intended it was after Verdict and so is the common Course M. 20 Car. 2. B. R. In Ejectment one may not have Priviledge of Tryal of Lands in Wales in the English County next adjoyning In the King's Case 〈◊〉 shall be in the Exchequer tho' the â—and lie in Wales for they are to be tried in the County where the Land lâ—es otherwise it is if the King be Party it 〈◊〉 be tried in the Exchequer This Action was brought by one of the Ushers of the Exchequer by Priviledge Savile 10 12. Ejectment is brought against one in Custodia in B. Tryal by Mittimus in the County Palatine R. of Lands in the County Palatine and the Action was laid in B. R. and the Record was sent down by Mittimus from B. R. and a special Indorsement of the Postea and thereof one prayed Judgment against his own Ejector in an Action of Lands in the County Palatine of Chester which the Court granted because when the Defendant hath pleaded to Issue they may try it by Mittimus in the County Palatine Redvish and Smith's Case M. 15. 2 Car. B. R. Holloway and Chamberlen Action on the Case on feigned Issue out of Chancery Per Twisden Justice the Lands being in the Isle of Wight and the Jury of Surrey this Tryal is not allowable to try Conveyata or not this being a Windlace to try Ejectments in another County But in 1 Ventr 66. a Title of Land was tried out the proper County upon a feigned Wager whether well conveyed or not this is the usual Course of Issues directed out of Chancery 2 Keb. 634. Meres Case 1 Ventris 66. Who shall be good Witnesses in this Action or not It is agreed That a Trustee cannot be a Witness concerning the Title of the same Land Trustee the Interest in the Law being lodged in him But by Hales a Trustee may be a Witness against his Trust 2 Sid. 109. In Ejectment the Plaintiff challenged B. a Witness to a Devise because he was Trustee in a Will and had an Annuity but he having released both before the Suit the Court held him to be a good Witness or if he hath received it and tho' it be after the Action brought Sid. 315. Interest in Equity disables a Man to be a Witness Interest in Equity but one who hath an equitable collateral Title may be a Witness Parishioners may be a Witness to a Devise by which the Parish claims Lands to the Relief of the Poor Parishioners Exception was taken against a Witness produced to prove the Lease of Ejectment Witness had the Inheritance because he had the Inheritance in the Lands let but it was urged by the other side That the Defendant did claim under the same Person that the Plaintiff did and so the Witness was admitted to be sworn Stiles Rep. 482. Fox and Swann One Coparcener cannot be Evidence for another in Ejectment Coparceners because she claims by the same Title tho' she is not Party to the Suit but the Daughter of her Sister may be sworn for altho' she be Heir yet her Mother may give the Lands to whom she will being Fee-simple P. 13 Car. 2. B. R. Truel and Castel In Ejectment of Tythes the Plaintiff excepted against a Copyholder in Reversion after an Estate Tail Copyholder in Reversion after an Estate Tail for a Witness to prove the Boundary of a Parish and he was set aside for the possibility which makes him partial M. 20 Car. 2. B. R. Hitchcok's Case In Ejectment of the Manor of S. Trespass on Issue out of Chancery to try the Number of Acres the Defendant excepted to a Witness that had been a Trespassor as Servant to my Lord Lee in the Lands in Question an Action being depending The Court set him aside and thereupon the Plaintiff was Non-suited M. 20 Car. 2. B. R. Tuck and Sibley Exception was taken against a Witness to prove the Execution of a Deed by Livery and Seisin Estate at Will because he had an Estate at Will made to him of part of the Land but it was dissallowed vide Mod. Rep. 21 73 74 107. Hob. 92. In Ejectment at Tryal at Bar Executor of the grant of a Rent the Title of the Lessor of the Plaintiff was upon the Grant of a Rent with power to enter for Non-payment the Executor of the Grantor was produced as a Witness for the Defendant It was objected against him That in the Grant of the Rent the Grantor covenanted for himself and his Heirs to pay it and so the Executor being obliged he was no competent Witness 1 Vent 347. Cook and Fountain On on a Trial at Bar per Cur. If one of the Witnesses had part of the Lands in Question The Witness Sells part of the Lnd before Tryal and he sells or disposeth of it after his coming to London or at any time after he had notice of Trial he shall not be received to give Evidence tho' he sell bona fide and upon a valuable Consideration and althô he himself be not Occupier of the Land nor had been after the Writ purchased but another by his Commandment the Court will not suffer him to be a Witness because if Verdict pass against him he who acted by his Commandment may charge him in Action on the Case Witness claimed Estate by Title Paramount both there Titles but upon Examination it appering That the Witness claimed an Estate for Life by Title Paramount both their Titles viz. Plaintiff and Defendant he was Sworn Siderf p. 51. Wicks and Smallbrok's Case Exception was taken against a Witness to prove Execution of a Deed of Feofment by Livery and Seisin Two Witnesses were subscribed
H. and it appeared at the Tryal that E. K. was Essoyned and the Court denied to amend it and there was no Essoyn and so no Adjournment and the Plaintiff was at large and Judgment pro Quer ' Note No Statute gives Amendment but in the Affirmance of Judgments and Verdicts and not in Defeasance of Judgments and Verdicts 1 Leon. p. 134. Woodel and Harel In Dyer 89. the Plea was quod non ejecit querentem de c. modo forma it was moved there that it is not any Plea and yet Dyer Vide 121. b. The Defendant in any case of Misdemeanour may say generally Non Culp ' or traverse the point of the Writ as ne forga pas non ejecit non rapuit non manutenuit In Ejectione Firme the Parties were at Issue In what Case no Verdict shall be entred and by the Order of the Court the Tryal was staid yet the Plaintiff privily obtained a Nisi prius and the Chief Justice being informed thereof awarded a Supersedeas unto the Justices of Assise before whom c. and yet the Inquest at the instance of the Plaintiff was taken and found for the Plaintiff and all this matter was shewed to the King's Bench and per Cur ' no Verdict shall be entred on the Record nor any Judgment on it 2 Leon. p. 167. Feild Leich and Cage Ejectione Firme against Drake and Five others Drake pleads Not guilty the others pleads the Plaintiff replie and so a Demur Per Cur ' seeing that one Issue in this Action was to be tried between the Plaintiff and Drake and altho' the Plaintiff offered to release his Damages on the Issue joyned One Defendant pleads Not guilty the other demurs no Judgment upon the Demurrer till the Issue be tried and to have Judgment against the Five Defendants who had demurred yet the Court was clear of Opinion That no Judgment should be given upon the said Demurrer till the said Issue was tried For this Action is in Ejectione Firme in which Case the Possession of the Land is to be recovered and it may be for any thing that appeareth that Drake who has pleaded the General Issue has Title to the Land But if this Action had been an Action of Trespass there in such Case ut supra upon Release of Damages and on the Issue joyned the Plaintiff shall have Judgment presently 2 Leon. p. 199. Holland and Drake In B. R. Writ to prohibit the Trial Rege inconsulto after Issue joyned in Ejectione Firme and the Jury ready to try it there comes a Writ to the Justices that they should not proceed Regina inconsulta in the nature of Aid prier and it was allowed Moor 421 583. Nevil and Barrington A Suit in the Spiritual Court pro jactitatione Maritagij stays not Tryal 1 Keb. 519. Ejectment in Brecknock-shire Stat. 27 H. 8. Marches it was tryed in Monmouth-shire since the Stat. 27 H. 8. it 's a Mis-tryal for Monmouth-shire was made an English County but in time of Memory by that Statute and so it ought to have been tried in Hereford shire Hard. 66. Morgan's Case Error of a Judgment in B. R. in Ireland in Ejectment after Verdict for Lands in the County of Clare It was excepted that the Verdict was given by a Jury retorned by the Sheriff of the Queens County Consent to alter the Tryal entred upon the Roll. Hob. p. 5. sed non alloc ' for the Consent of the Parties to this Tryal was entred upon the Roll which was not in Hobart but only in a proper Rule of Court and therefore the Judgment there was reversed as 1 Rolls Rep. 28. Crow and Edwards with this accords Cr. El. 664. Sir Thomas Jones 199. Devoren and Walcott A new Tryal was denied in Ejectment New Tryal denied and why tho' the Verdict was given contrary to the Direction of the Court in matter of Law because it was a Tryal and because it is not final Sir Thomas Jones 224. Earl of Thanet's Case Ejectment was brought for Lands in the County of Clare in Ireland Issue was joyned on Not guilty and then there is an Entry on the Roll Consent to a Tryal in a Foreign County Et super hoc pro indifferentitriatione exitus praedict ' inter partes praedict ' eaedem partes ex eorum unanimi Consensu Assensu Consensu eorum Conciliat ' Attornat ' c. petunt Breve Dom ' Regis Vic' Com' Cork dirigend ' de Veniâ—e fac ' duodecim de corpore Comitatus sui ad triandum exitum praedict Ideo praecept ' est c. then there is a Nisi prius granted to the County of Cork and the Cause was there tried and a Bill of Exception put in and on Debate in B. R. Judgment was given for the Defendant The Plaintiff brings a Writ of Error whether Consent can make this Tryal in a Foreign County good and per Cur ' the Tryal is well had Raym. 372. Vicount Clare and Lynch Hob. 5. 1 Rolls Rep. 166 363. Palmer 100. At the Assises in Northumberland 15 Car. Nonsuit at Nisi prius discharged 2. a Plaintiff in Ejectment was called and non-suited and this entred upon the Record before the Venire or Distringas c. was put in and this appeared by the Postea produced and so the Justices of Nisi prius had not power of Nonsuit for their Power is by the Hab. Corpus and therefore the Court discharged the Nonsuit and gave leave to the Party to proceed again Sid. 64. Tomson's Case CHAP. XI Of joyning Issue and Tryal Where Issue in Ejectment shall be tried in other County than where the Lands lie Trial by Mittimus in the County Palatine Who shall be good Witnesses or not in this Action What shall be good Evidence in this Action Copy of Deed. Deed cancelled Conditions collateral Warranties found by Jury What is good Evidence in reference to a former Mortgage Where Probate of Will is sufficient Evidence or not In case of Rectory what is good Evidence and what things the Parson must prove Ancient Deed. Scyrograph of a Fine and constant Ejoyment Evidence as to an Appropriation Deposition of Bankrupts Deposition in Chancery Answer in Chancery Transcript of a Record Inrolment of Deed. Doomsday-book Variance between the Declaration and the Evidence Demurrer to an Evidence Exemplification of a Verdict Where Issue in Ejectment shall be tried IT ought to be in the County where the Land lies If Ejectione Firme be brought and laid in Com' D. for Lands lying in another County altho' this be by Assent of the Parties and the Defendant pleads Not guilty and Verdict and Judgment given for the Plaintiff yet this is Error for this is against the Law which cannot be altered by Assent of the Parties But upon View of the Record if it doth not appear to the Court that the Land lies in another County they will not reverse the Judgment for that Cause And
the Custom be not well found it was not found in that Case that the Land was demisable according to the Will of the Lord and so it may be Free-Land and the Custom did not extend to it nor is it found that the Parties to whom the Lettor of Attorney was made to surrender were customary Tenants and then the primer Possession by the Defendant will make a Disseisin and Judgment pro Quer ' In Ejectment prior Possession is a good Title against the King's Presentation In Ejectment prior Possession a good Title against the King's Presentation not so in a Quare Impedit but not so in a Quare Impedit for there the Incumbent ought altho' Defendant to make a Title against the King's Presentation without Title as is the Book 7 H. 4. 31. but if the Incumbent be in by Entry of his own Head without Presentation it is not sufficient in either 1 Keb. 503. Brown and Spencer 3. Si constare poterit that it is the same Land it is good The Special Verdict is good si constare poterit that it is the same place and the same Land in the Declaration mentioned although it be not found expresly and although the Jury find not that it is the same Land in the Declaration mentioned yet if they find the Entry and Ejectment according to the Declaration it is sufficient and therefore the Mistake of a Letter or Addition of a Word shall not hurt the Verdict si constare poterit c. Siderf p. 27. Hoare and Dix 4. The Special Conclusion of a Special Verdict shall aid the Imperfections of it In many Cases the special Conclusion of a Special Verdict shall aid the Imperfections of it If the Jury find a Special Verdict and refer the Law upon that special Matter to the Court although they do not find any Title for the Defendant which is a collateral thing to the Point which they refer to the Court yet the Verdict is good enough for all other things shall be intended except this which is referred to the Court. As in Ejectment if the Plaintiff declare upon a Lease made by A. and the Jury find a Special Verdict and matter in Law upon a Power of Revocation of Uses by an Indenture and Limitation of new Uses and then a Lease for years made to the Plaintiff by the Lessor in the Declaration and another in which there is a perfect Variance but they conclude the Verdict and refer to the Court whether a Grant of a new Estate found in the Verdict be a Revocation of the first Indenture or not The special Conclusion shall aid the Verdict so that the Court cannot take notice of the variance between the Lease in the Declaration and the Verdict because the doubt touching the Revocation is only referred to the Court. And although they refer to the Court whether this be a Revocation of the first Indenture and not of the former Uses or Limitation of new Uses as it ought to be yet in a Verdict this is good for their intention appears Intent But where the Jury find specially and furthermore conclude against Law Where the Verdict is good and the Conclusion ill Diversity between a geneneral Conclusion and a special Conclusion the Verdict is good and the Conclusion is ill and the Court will give Judgment upon the special Matter without having regard to the Conclusion of the Jury 5. Rep. 97. Litt. Rep. 135. 2 Keb. 362 412. 11 Rep. 10. Moor 105 269. So note this Diversity between a special Conclusion of the Jury and Reference to the Court and a general Conclusion and Reference to the Court A Special Verdict may make the Declaration good A precise Verdict may make the Declaration good which otherwise would be ill as the Declaration is of Lands in Sutton Coefeild and the Verdict finds the Lands in Sutton Colefeild and the Deed is of Lands in parva Sutton infra Dominium de Sutton Colefeild so neither the Verdict nor Deed agree with the Declaration for the Vill where the Lands lie therefore no Judgment ought to be given But per Cur ' the Verdict finding Seisin de infra script ' messuag ' that is quasi an express Averment and finding that Sutton Coefoild and Sutton Colefeild parva Sutton infra Dominium Sutton Colefeild are all one and that they be all in one Parish and this being in a Verdict when the Jury found Quod dedit tenementa infra script ' by Name in the Deed shall be intended all one So it s aided by the finding of the Jury who find expresly that the Bishop dedit Tenementa infra Script Cr. Jac. 175. Ward and Walthow Yelv. p. 101. Mesme Case 5. The Judges are not bound by the conclusion of the Jury as in Ejectment on a void the Jury find Lease Lease that if the Entry of the Daughter was not congeable the Defendant is Guilty Now the Judges are not bound by the conclusion of the Jury but may Judge according to Law as 10 Ed. 4. f. 70. Trespass was brought against the Lord for Distraining The Jury found for the Plaintiff But because the Statute of Marlbudge is non ideo puniatur Dominus c. The Court shall adjudge for the Defendant So is the Rule in Plowd Com. 114. b. when the Verdict finds the fact but concludes upon it contrary to Law the Court shall reject the conclusion as in Amy Townsend's Case The Jury find precisely that the Wife was remitted which was contrary to Law for their Office is to judge of matters of Fact and not what the Law is So if the Jury collect the contents of a Deed and also find the Deed in haec verba The Court is not to Judge upon their Collection but upno the Deed it self Moor p. 105. Lane and Cooper And yet the Court is sometimes bound by the conclusion of the Jury as in Ejectione Firme of one Acre The Jury find the Defendant Guilty of one Moiety and a Special Verdict for the residue and conclude if the Court shall find him Guilty of all then c. The Plaintiff cannot have Judgment upon this for a Moiety if the Court shall not adjudge him Guilty of the whole for the Special conclusion cited 1 Rolls Rep. 429. 1. Verdict to be taken according to Intent Special Verdict shall be taken according to Intent and the Court must make no more doubts than the Jury does the finding matter of Fact being only the Jurors Office as 5 Rep. Goodales's Case The doubt was whether the payment of 100 l. with agreement to have some part of it back again were sufficient upon a Condition to defeat the Estate of a Stranger The Court regarded not that there was no Title found for the Party that made the Entry whereupon the Action was brought Ejectione Firme was brought by G. against W. upon Not guilty the Jury concluded their doubt upon performance of a Condition When the
what Judgment he shall have What Judgment shall be if the Lease expires before Judgment In what Cases Judgments shall be amended Mistakes of Acres Omission Defalts of Clerk Variance of parcel If Scire facias on a Judgment in Ejectment may be brought by the Administrator of the Lessee No Judgment upon Nihil dicit but upon motion in Court of Judgment given against ones own Ejector in several good Cases and of a Practise to gain Possession CHAP. XIV Habere facias Possessionem how to be executed and when and in what Cases a new Habere facias Possessionem is to be granted or not The manner how the Sheriff is to deliver Possession How the Sheriff is to esteem the Acres How the Sheriff is to give Possession of Rent or Common How Habere facias Possessionem awarded into Ireland In what Cases a new Habere facias Possessionem shall be granted or not And of the Sheriff ' s demeanor therein After the Writ of Habere facias Possessionem returned and filed whether the Court may award a new Writ Where the first Writ is not fully executed if the Court will grant a new one Where Hab. facias Possessionem shall be after the year without Scire fac ' Return of Habere fac ' Possessionem with a Fieri facias Of Misdimeanors in giving Possession Sheriff's Fees CHAP. XV. Of Action for the mean Profits In whose name it shall be What Evidence shall be given in this Action or not The Writ of Enquiry for mean Profits how it abates If upon Confession of Lease Entry and Ouster the Lessee may have Trespass for the mean Profits from the time of the Entry confessed In Trespass for mean Profits Special Bail is always given CHAP. XVI VVrit of Error Where it lies Of what Error the Court shall take Conisance without Diminution or Certificate Variance between the Writ and Declaration Variance between the Record and the Writ of Error One Defendant dies after Issue and before Verdict Nonage in Issue on Error where to be tried Amendment of the Judgment before Certiorari awarded Release from one of the Plaintiffs in the Writ of Errors bars only him that Released and why Outlawry in one of the Defendants pleaded in Error Of Release of Errors by the Casual Ejector where it s a fraud Error without Bail a Supersedeas Ejectment against eight And Judgment was only against three And Error brought grounded upon the Judgment ad grave damnum ipsorum Error of Ejectment in Ireland THE LAW OF EJECTMENTS CHAP. I. The Nature of the Action of Ejectione Firme and of the Change of Real Actions into Ejectments Difference between an Action of Trespass and Ejectment in Five Diversities Difference between Ejectione Firme and Quare Ejecit infra Terminum in what Court this Action is to be brought or not and of Removal by Procedendo into inferior Courts THIS Action of Ejectione Firme includes in it self an Action of Trespass as appears by the Beginning Body and Conclusion of the Writ for the Writ begins thus Si A. fecerit te securum de clamore suo prosequendo tunc pone c. and so begins the Writ of Trespass The Body of the Writ of Ejectione Firme is Quare unum Messuagium vi armis fregit intravit and all the Addition in the Ejectione Firme is Et ipsum à firmâ sua inde ejecit c. The Conclusion of both is Et alia enormia ei intulit ad grave damnum and the Trespass and Ejectment are so woven and intermixt together that they cannot be severed and the Entry in an Ejectione Firme is In plito ' Transgressionis Ejectionis Firme In 6 R. 2. Tit. Eject ' Firme a. it is called an Action of Trespass in its Nature The Consequence of this is That in this Action Accord with Satisfaction is a good Plea And Accord and Satisfaction for one shall discharge all the Trespassers and Ejectors and tho' the Term which is a Chattel Real shall be recovered as well as Damages yet it is a good Plea Now tho' we find few Titles of Ejectione Firme in our Old Books yet it was in use all along it was used in Bracton's time and Term and Damages were recovered therein In tempore H. 3. he saith Si quis ejiciatur de usu fructu vel habitatione alicujus tenementi quod tenuit ad terminum annorum ante terminum suum there the Lessee shall have a Writ of Covenant against his Lessor and against his Vendee he shall have a Quare Ejecit infra Terminum and as well against the Lessor as a Stranger an Ejectione Firme But this Action came to be more frequent in my Lord Dyer's time as may appear by his Complaint in Court when he was Lord Chief Justice of the Common Pleas The Reason of the Change of Real Actions into Ejectione Firmes which also gives us the Reason of the change of Real Actions into Ejectments All Actions saith he almost which concern the Realty are determined in the King's Bench by Writs of Ejectione Firme whereby the Judgment is quod recuperet Terminum and by that they are soon put into Possession And therefore in a Formedâ—n it was prayed by Council that they might proceed without Essoyns and feint Delays because the Plaintiff's Title appeared which my Lord Dyer granted Because said he this Court is debased and lessened and the King's Bench doth increase with such Actions which should be sued here for the speed which is there And continued he no Action in Effect is brought here but such Actions as cannot be brought there as Formedons Writs of Dower and the like And it is my Lord Chief Justice Hale's Observation in his Preface to Rolls's Abridgment The Remedy by Assises and several Forms and Proceedings relating thereunto were great Titles in the Year-Books and altho ' the Law is not altered in relation to them yet Use and common Practice hath in a great measure antiquated the use of them by recovering Possessions and the Remedy by Ejectione Firme used instead thereof So that rarely is any Assise brought unless for recovering Possesion of Offices And so of Real Actions as Writs of Right and Writs of Entry which are seldom brought unless in Wales by a Quod ei deforceat But now the Entry of him that hath right being lawful Men choose to recover their Possessions by Ejectione Firme But there was a new way invented to try Titles of Land in personal Actions but was not allowed as in Jeremy and Simson's Case 16 Car. 2. B. R. It was moved for Tryal at Bar on a feigned Action on the Case upon a Wager by Agreement of Parties to have the Opinion of the Court of the Validity of a Will but tho' the Action was laid in Middlesex yet being an Innovation and the way to subvert Ejectione Firme's which have subverted the Formedons and it sufficiently appearing feigned on the Record in that the Title of Land is hereby to be
tryed in personal Actions it was totally denied but had it been by direction of Chancery the Court would do it but would in no wise grant this It was said by Ellesmere Lord Chancellor that until the 14. H. 7. it was never known that a Possession was removed by an Action of Ejectione Firme and said It was great pity it was allowed at this day for Law in England and therefore was of Opinion That an Action of Trespass Quare clausum fregit was much better to try the Title than an Ejectione Firme 1. Because no Possession was removed by the one 2. Because a Man may so plead in an Action of Trespass as that he may make the Plaintiff disclose his Title whereas by his Ejectione Firme it is no more than Non culp ' and then a Trial and so out of Possession without more business which he said was a Pick-pocket Action Ex M. S. 3 Leon p. 49. This Action is grounded on two Things videlicet the Lease and the Ejectment It was well observed in Eyres and Banister's Case Meor Rep. 418. That Ejectione Firme in former times was not thought to be an Action which concerned the Lessor but only the proper Interest of the Lessee but now of late times it is put in ure by the Experience of the Judges and all others that an Ejectione Firme is the Suit of the Lessor and the Lease made only to try his Title and to recover the Possession to him and the Suit is prosecuted at his Charge and his Lessee is but his Instrument to this purpose and all this to avoid the Charge and Delay of a Real Action and the Peril of being barred by a single Verdict And Partridge and Strainge's Case Plo. 78. was cited for the purpose if one being out of Possession above a year makes a Lease for years this is Maintenance within the Stat. 32 H. 8. and the Lessor and the Lessee shall lose the Value of the Land but if such a Person be at this day possest of such a Lease to try the Title and not by Contract that the Lessee shall hold the Land this is no Maintenance as hath been resolved in B. C. B. R. and Star-Chamber But for the better understanding the nature of this Action I shall shew wherein it differs from an Action of Trespass and a Quare Ejecit infra Terminum for tho' as was observed before it is in a sort a Trespass yet it differs from it in several Things In Trespass Damages are only to be recovered Diversity where the Damages are only recovered and where the Term. but in Ejectione Firme the Thing or Term it self is to be recovered as well as Damages And from hence another difference is observable in respect of Certainty If in Trespass the Plaintiff declares in one Acre and abutts it and the Jury find him guilty in dimidio Acrae praedict ' or in one Foot of it this is good tho' the Moiety is not bounded they have found the Trespass in the Moiety of the Acre bounded and this sufficeth â—n this Action where Damages are only to be recovered But if it were in Ejectione Firme it had been ill for it is not certain in what part the Plaintiff shall have his Habere fac ' possessionem And from this Diversity it is that if an Ejectione Firme be brought against two Defendants the one confesseth the Action and the other pleads in Bar Not guilty the Plaintiff cannot release his Suit as to one of the Defendants and proceed against the other but in Trespass in such Case he may because this Suit is only in point of Damages Yelv. 114. Winckworth and Man 2 Bulstr 53. Diversity Possession a good Title in Trespass but not in Ejectment and why Possession is a good Title for the Plaintiff in Trespass if the Defendant hath not a better to shew aliter in Ejectment for in Ejectione Firme if the Plaintiff hath not a Title according to his Declaration he cannot recover whether the Defendant hath Title or not as was Cotton's Case An Infant leaseth Land to C. at will who entred and ousted S. who thereupon brought an Ejectione Firme on a special Verdict no Title appeared to be in the Plaintiff and it was objected against the Lease at will because it was made by an Infant and no Rent reserved upon it nor the Lease made upon the Land and therefore the Lessee should be a Disseisor Per Cur ' be the Defendant a Disseisor or not it s not material here for if the Plaintiff hath not Title according to his Declaration he cannot recover and it is not like to Trespass where the very Possession without other Title is good 1 Leon 215. Cotton's Case Naked Colour is not sufficient in Ejectione Diversity colour not sufficient in Ejectione Firme and why Firme as it is in Trespass therefore if the Plaintiff make Title in Ejectment this Title of the Plaintiff ought of necessity to be answered viz. either by matter of Fact or in Law which confesseth and avoideth the Title or traverseth it For a naked Colour in this Action is not sufficient as it is in Assise or Trespass which comprehend not any Title or Conveyance in the Writ or Count as this Action does in both and in Godb. 159. in this Action a Man shall not give Colour because the Plaintiff shall be adjudged in by Title Dyer 366. Godb. 159. Piggot and Goddet's Case Allowance of Conisance of Franchise in Conisance of Trespass includes not Ejectments Trespass will not warrant an Ejectione Firme unless the Franchise had Conusance of all Pleas as was adjudged in the Case of the Bishop of Ely Ter. P. 18 Car. 2. B. R. In Clerks Case the Venire fac ' was ad faciend ' juratam in Placito Transgressionis where it should have been in Placito Transgressionis Ejectionis Firme and the Court would not amend it For though Ejectione Firme be but a Plea of Trespass in its Nature yet the Actions are several and therefore the Venire fac ' ought to be accordingly Cr. El. 622. Clerk's Case In Ejectment against two one pleads to Issue and the other demurs Issue first to be tried Ejectione Firme against two Defendants one pleads Not guilty the other pleads the Plaintiff replies and so Demurrer no Judgment shall be given on the Demurrer till the Issue be tried for in this Action the Possession of the Land is to be recovered and it may be for any thing that appeareth he who pleads the General Issue has Title to it but if it had been an Action of Trespass and the Plaintiff will release his Damages on the Issue joyned he shall have Judgment against the other 2 Leon. 199. Drake and Monday Trespass is deins Stat. 21 Jac. which names Trespass generally but Ejectment is not 1 Keb. 295. Power 's Case The Plaintiff declares in Trespass in one Acre and abutts it the Jury find him guilty in dimidio Acre praed