The Law of ejectments, or, A treatise shewing the nature of ejectione firme the difference between it and trespass, and how to be brought or removed where the lands lie in franchises ... as also who are good witnesses or not in the trial of ejectment ... together with the learning of special verdicts at large ... very necessary for all lawyers, attornies, and other persons, especially at the assizes &c.

CHAP. III.

Of Process in Ejectione Firme. The Original. What Mistakes in the Original are Error af∣ter 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 A∣mendments 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. ••. fecerit te securum tunc pone p 〈…〉〈…〉 pleg C. D. nuper de Lon∣don 〈◊〉〈◊〉. Ita qd sit coram Iustici∣ariis nostr apud 〈◊〉〈◊〉 (tali die) ad respondend W. ••. ••e Plito quare vi & armis unum Mess••••g decem Aeras Ter∣re & tres. Aeras Pasture cum {per}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 gra∣ve 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 Summo∣nitus in Ejectment was held to be an Error.

In Ejectione Firme brought by Ori∣ginal Writ out of Chancery;* 1.1 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 Ver∣dict 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 fi∣led;* 1.2 and then per Cur' seeing there is no Original filed, it shall be intended after Ver∣dict, 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 be∣fore the Plaintiff had any Cause of Acti∣on; but the Council of the other side said, There is a wrong Original certified, and prayed to have a new Certificate to have the true Original certified.* 1.3 Per Cur', Take it, for it is in Affirmance of a Judgment, which ought to be favoured. But in John's and Steyner's Case the Original bore Date 24 Junij 6 Car. and the Ejectment is sup∣posed 31 Januarij: Per Cur' it's Error, be∣cause the Original (upon Diminution al∣ledged) was certified as an Original in this Action, which is between the same Parties, and of the same Land, and of the same Term; and being taken out before the Cause of Action, it's a vicious Original, not aided by any Statute, Stiles Rep. 352. Jen∣nings and Downes. Cro. Car. 272, 281. Johns and Steyner.

It's a Rule in the Register, That in the Writ of Ejectione Firme there may not be Bona & Catalla, because that for Goods ta∣ken away a Man shall have an Exigend', and in this Writ Distress infinite, Plo. 228. b.

So was Johnson and Davies's Case. The Suit was by Original Writ, which is of one Messuage, Sixty Acres of Land, Three hun∣dred Acres of Pasture; but per Curiam this

shall not be intended the Original upon which the Plaintiff declared, but that there was another Original which warranted the Declaration, which is now imbesilled; and this want is aided by the Statute of Jeofayls, especially as this Case is; because the Writ is Teste 18 Apr. Ret' 15 Pasch. &c. This De∣claration is in Trinity Term, and here is no Continuance upon this Writ, Cro. Car. 327. Johnson and Davis.

In Ejectione Firme the Paper-Book was right,* 1.4 scil. Acram Terrae, and the Bill upon the File was ill (scilicet) Clausum Terrae; and the Bill was amended by the Paper-Book; and the Difference is, where there is a Pa∣per-Book in the Office of the Clerk, this be∣ing right, all shall be amended by it; but if there were not any Paper-Book, and the Bill upon the File is ill, there can be no Amendment: and in this Case the Amend∣ment was according to the Paper-Book which was in the Hands of the Plaintiff's Attorney, Palmer, 404, 405. Todman and Ward.

It was an Exception in Haines and Strow∣der's Case, because the Suit was by Original Writ, and the Clause (ostensurus) was not in the Writ, Palmer, 413. Haines and Strow∣der. Godb. 408. Case. Crouch and Haines, Case 488.

The Original was Teste the same Day that the Ejectment was made,* 1.5 and adjudged good per totam Curiam, 2 Roll. Rep. 352, 129. Beaumont and Coke.

As for the Amendment of Originals in Ejectione Firme,* 1.6 there are many Cases in our Books; I shall name one or two which may be as a Guide in others.

Ex divisione for ex dimissione was amended; so Barnabiam for Barnabam, and so what ap∣pears to be the Default of the Cursitor, 1 Brownl. 130. 1 Rolls Abr. 198.

In Ejectione Firme,* 1.7 if the Bill be not per∣fect; but Spaces left for Quantity of Land and Meadow; and after the Paper-Book given to the Party, is made perfect, and the Plea-Roll and Nisi-prius Roll, but the Bill upon the File was never perfected; and af∣ter a Verdict is given for the Plaintiff, this Imperfection of the Bill shall be amended, because the Party is not deceived by this, forasmuch as the Paper-Book which he had, was perfect, and it was the Neglect of the Clerk not to amend the Bill when the Party had given him Information of the Quanti∣ty, 1 Rolls Abr. 207. Leeson and West.

Original in Ejectment was amended after Writ of Error brought, as divisit for dimisit, 2 Ventr. 173.

By the Stat. 13 Car. 2. c. 11. In all per∣sonal Actions, and in Ejectione Firme for Lands, &c. depending by Original Writ, af∣ter any Issue therein joyned, and also after any Judgment therein had and obtained, there shall not need to be Fifteen Days be∣tween the Teste-day and the Day of Retorn of any Writ of Ven' fac', Hab' corpora jurat', Distringas jurat', Fieri facias or Capias ad Satisfaciend', and the want of Fifteen Days between the Teste-day and the Day of Re∣torn

of any such Writ, shall not be assigned for Error.

If an Original in B. R. be ill, Error upon it lies not but in Parliament, Sid. p. 42.

Action of Ejectment, and also Battery in one Writ, and it was moved in Arrest of Judgment, because Battery was joyned in E∣jectment, the Damages were found several∣ly, and the Plaintiff released the Damages for the Battery, and prayed Judgment for the Ejectment, and had it; 1 Brownl. 235. Bide and Snelling.

Of Appearance.

If the Tenant in Possession do not appear in due time after the Declaration left with him,* 1.8 and enter into the Rule for confessing Lease-Entry and Ouster, then upon Affida∣vit made of the Service thereof, and No∣tice given him to appear, upon Motion the Court will order Judgment to be entred up against the casual Ejector.

In Ejectment or any other personal Acti∣on, if the Defendant do appear upon the first Retorn in Hillary or Trinity Term, there can be no Imparlance without Consent or special Rule of Court.

In Actions real and mixt against an In∣fant, he ought to appear by Guardian,* 1.9 and not by Attorney; and Judgment in Ejecti∣one Firme in Banco against the Infant De∣fendant upon a Verdict had against him, was reversed for this Cause, 1 Rolls Abr. 287. Lewis and Johns.

Ejectione Firme was brought against Tho∣mas the Father and J. the Son; the Father appeared by T. C. Attornat' suum, and the said J. per eundem T. C. proximum amicum suum▪ who was admitted per Cur' ad prosequend', this is Error: A Guardian and Prochein A∣my are distinct,* 1.10 and a Guardian or Prochein Amy may be admitted for the Plaintiff; and a Prochein Amy is appointed by W. 1. c. 47. W. 2. c. 15. in case of Necessity, where an Infant is to sue his Guardian, or that the Guardian will not sue for him,* 1.11 and there∣fore he is admitted to sue per Guardian or Prochein Amy, where he is to demand or gain; but when he is to defend a Suit in Actions Real or Personal, it always ought to be per Gardianum, and the Guardian ought to be admitted per Cur'. Therefore the Defendant ought always to appear by Guar∣dian, and not by Prochein Amy; and also to admit the Defendant ad prosequend', is ill and preposterous, Cro. Jac. 640. Ma∣by and Shepard.

Pledges.

Error of a Judgment in C. B. in Ejectione Firme assigned in 1 Cro.* 1.12 91, 594. in not certifying Pledges (on Diminution al∣ledged) in a Writ of Error, for that Cause per Cur' Omission of Pledges, or of one, is Error, tho' after a Verdict; and the Defen∣dant after in nullo est erratum pleaded, may pray Diminution, which cannot be granted but on Motion, and then only to affirm the Judgment; yet when the Record is come

in, it may be made use of to avoid the Judgment; and because Diminution was not prayed, the Court conceived it cannot be assigned for Error, 1 Keb. 278, 281. Hodges's Case.

Bail.

In Ejectment against Two, one does not put in Bail, it is Error, 2 Rolls Abr. 46. Den∣nis Case.

In Ejectment on Non Culp. pleaded by the Attorney for the Defendant,* 1.13 Verdict was for the Plaintiff, who had Judgment, and Error was brought to reverse it, because no Bail was put in for the Defendant; yet the Attorney being once retained by Warrant to put in Bail, and took his Fee, and being but common Bail, tho' the Attorney was dead, yet the Bail was then entred, as of the same Term it ought to have been done, 3 Bulstr. 181. Denham and Comber.

Trespass is within the Act of 21 Jac. which names Trespass generally,* 1.14 but Eject∣ment is not within that Act. Stat. 13 Car. 2. c. 2. orders Bail on Error in Trespass, 1 Keb. 295. Power's Case.

Note, Error without Bail, is a Supersedeas in Ejectment, notwithstanding the new Act, 13 Car. 2. c. 2. it being not within the ge∣neral Word, Trespass, Id. p. 308. Lufton and Johnson.

Tr.* 1.15 14 Car. 2. B. R. ordered that Com∣mon Bail shall be filed for the Defendant be∣fore any Declaration by Bill in such Action shall be delivered to the Tenant in Posses∣sion

of the Lands in such Declaration con∣tained, and that if the Attorney for the Plain∣tiff in B. R. shall fail thereof, then no Judg∣ment for the Plaintiff shall be entred against the casual Ejector, nor shall the Tenant in Possession confess Lease-entry and Ouster at the Trial.

Attorney was made Lessee in Ejectment,* 1.16 and he would not grant an Imparlance to the Defendant, as the Course is, because he is Attorney of this Court (B. R.) and so claims Priviledge that the Defendant may answer him this Term, or else he will en∣ter up Judgment against him for want of a Plea. Quaere. Stiles Rep. 367.

Notes

• * 1.1

  Summonit. for Attachment, is Error after Verdict.
• * 1.2

  Aliter if there be no Original.
• * 1.3

  Original taken out before the Cause of Acti∣on, is Error.
• * 1.4

  Where Amend∣ment shall be by the Papre-Book, or not.
• * 1.5

  Original Teste the same day of Ejectment.
• * 1.6

  Of Amend∣ments of Ori∣ginals in this Action.
• * 1.7

  If the Paper∣Book be per∣fect, tho' the Bill upon the File be not per∣fect, yet it's amendable af∣ter Verdict.
• * 1.8

  Judgment a∣gainst the ca∣sual Ejector for want of Ap∣pearance.
• * 1.9

  Infant, how to appear.
• * 1.10

  Infant, how to sue or defend.
• * 1.11

  The Difference between Guar∣dian and Pro∣chein Amy. Want of
• * 1.12

  Pledges not assigned for Error, because Diminution was not pray'd.
• * 1.13

  Common Bail entred after the Attorney was dead.
• * 1.14

  Stat. 13 Car. c. 2.
• * 1.15

  When common Bail to be filed.
• * 1.16

  Imparlance.