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.

THE LAW OF EJECTMENTS.

CHAP. I.

The Nature of the Action of Ejectione Fir∣me, 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 se∣curum 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 & intra∣vit; 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 Sa∣tisfaction 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 reco∣vered 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 ter∣minum 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;* 1.1 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 there∣fore in a Formed••n it was prayed by Coun∣cil that they might proceed without Essoyns, and feint Delays, because the Plaintiff's Ti∣tle 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 (con∣tinued 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 seve∣ral Forms and Proceedings relating thereunto, were great Titles in the Year-Books; and al∣tho' 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 recover∣ing Possessions, and the Remedy by Ejectione Firme used instead thereof. So that rarely is any Assise brought, unless for recovering Pos∣sesion 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 Fir∣me. 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 A∣greement 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 subvert∣ed 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 Chancel∣lor, 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 busi∣ness, which, he said, was a Pick-pocket A∣ction. 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 Bani∣ster'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 Main∣tenance, as hath been resolved in B. C. B. R. and Star-Chamber.

But for the better understanding the na∣ture 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 Tres∣pass, yet it differs from it in several Things.

In Trespass Damages are only to be reco∣vered, [ 1] * 1.2 but in Ejectione Firme the Thing or Term it self is to be recovered as well as Da∣mages: 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 bound∣ed; they have found the Trespass in the Moiety of the Acre bounded, and this suf∣ficeth ••n this Action where Damages are only to be recovered: But if it were in E∣jectione 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 re∣lease his Suit as to one of the Defendants, and proceed against the other; but in Tres∣pass in such Case he may, because this Suit is only in point of Damages. Yelv. 114. Winck∣worth and Man. 2 Bulstr. 53.

[ 2] * 1.3Possession 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 Ti∣tle 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, its not material here, for if the Plain∣tiff hath not Title according to his Decla∣ration, 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 [ 3] * 1.4 Firme, as it is in Trespass; therefore if the Plaintiff make Title in Ejectment, this Title of the Plaintiff ought of necessity to be an∣swered (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 [ 4] * 1.5 Trespass, will not warrant an Ejectione Fir∣me, 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 fa∣ciend' [ 5] juratam in Placito Transgressionis, where it should have been in Placito Transgressio∣nis & 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.

[ 6] * 1.6Ejectione Firme against two Defendants, one pleads Not guilty, the other pleads, the Plaintiff replies, and so Demurrer; no Judg∣ment 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 Tres∣pass, and the Plaintiff will release his Dama∣ges on the Issue joyned, he shall have Judg∣ment against the other. 2 Leon. 199. Drake and Monday.

[ 7] Trespass is deins Stat. 21 Jac. which names Trespass generally, but Ejectment is not, 1 Keb. 295. Power's Case.

[ 8] The Plaintiff declares in Trespass in one Acre, and abutts it, the Jury find him guilty in dimidio Acre praed', this is good; but if it were in Ejectione, the Verdict had been ill; for it is not certain in what part the Plain∣tiff shall have his Habere fac' possessionem, Yelv. 114.

Ejectione Firme and Trespass of Battery were both in one Writ,* 1.7 and upon Not guil∣ty, Verdict was given for the Plaintiff both for the Ejectment and for the Battery, and intire Damages. Q. of the Judgment; for the Damages for the Battery could not be re∣leased, because they were entire with the Ejectment, Hob. 249. Bird and Snell.

Ejectione Firme against a Baron and Feme, which are but one Person in Law, yet if the Baron dies, the Suit shall proceed against the Wife; for it is in the nature of a Trespass, Hardr. 161.

Of the Difference between Ejectione Firme and Quare ejecit infra Terminum.

Ejectione Firme lies against the immediate Ejector, but Quare ejecit lies against him who has Title, as against him in Reversion, 7 H. 4. 6. b.

Ejectione Firme is vi & armis, the other is not.

Quare ejecit infra Terminum lies against him who is in by Title, as against the Ven∣dee of the Lessor, but Ejectione Firme is a∣gainst him that is the wrong Doer.

In Ejectione Firme if the Term expire hanging the Action, this shall not abate the Writ, but the Plaintiff shall have Judgment for his Damages; aliter in Quare ejecit infra Terminum.

Note, No Ejectione Firme was brought a∣gainst a Stranger before 14, H. 7.

At Common Law the Lessee had no Acti∣on but of Covenant against his Lessor or E∣jectione Firme. The Quare ejecit infra Termi∣num is given by the Stat. W. 2. c. 24. for Reco∣very of his Term against the Feoffee; for Ejectione Firme lies not against him, because he came to the Land by Title of Feoffment, 〈…〉〈…〉

In what Court this Action is to be brought, or not, and of Removal by Procedendo to an In∣feriour Court.

It lies in B. R. and Banco Communi.

It lies in the Exchequer, and for a Party priviledged by Bill, 1 Rep. 3. Pelham's Case.

Note, Where the King's Revenue is con∣cerned, the Ejectment ought to be brought in the Exchequer,* 1.8 as if a Man claims Title to Lands of a Person out∣lawed. Ejectione Firme was brought in the Exchequer by Garroway against R. T. upon an Ejectment of Lands in Wales, and it was maintainable as well as In∣trusion on Lands in Wales upon the King himself.

Upon Ejectment brought in the Court of Common Pleas by the Defendant in the Exche∣quer, the Plaintiff moved that the Action might be laid in the Exchequer, because his Title was under an Extent out of this Court for Debts in Aid; and so it was ordered, Hardr. p. 193. Sir Ralph Banks and Sir Tho. Bennet. Hardr. p. 176. Hammond's Case. Godb. 1. 296. Case 416.

This Action lies not in the Marshalsea, 10 Rep. 72.

It lies in the Court of Ancient Demesne,* 1.9 if it be of Ancient Demesne Lands, and not in the King's Courts; and therefore in Ejectione Firme brought above, Ancient De∣mesne is a good Plea. Vid. infra Tit. Plead∣ing. 5 Rep. 105. Alden's Case.

Ejectione Firme depends in B.* 1.10 C. and a special Verdict is found. The Plaintiff may bring a new Ejectment in the King's Bench, and it shall not abate, for it's no Inconve∣nience to any Person, the same being Plain∣tiff here and there; but if the Verdict had been for the Defendant in the Common Bench, then the Plaintiff cannot bring a new Action in B. R. till Possession be given in Baneo Communi according to the Ver∣dict, Tr. 17 Car. 2. B. R. Shepard and Grif∣fith.

By Twisden in Crisp and Jackson's Case,* 1.11 the Reason why Ejectment will not lie of Lands in Jamaica, or in any of the King's Fo∣reign Territories, was, because the Courts here could not command them to do Exe∣cution there, for they have no Sheriffs, 1 Ventr. p. 59.

Tr.* 1.12 14 Car. 2. It was ordered in B. R. that in every Action of Trespass and Ejectment to be brought after that time in the King's Bench, if the Land did lie in the County of Middlesex, then a Bill of Middlesex should be brought; and if the Lands lay in London, then a Writ of Laitat should be taken out against the casual Ejector named Defendant in every such Action.

If Ejectione Firme be removed from an Inferior Court by Habeas Corpus into the King's Bench, it is not removable by Proce∣dendo to a Franchise, as Oxon, Pole, Canter∣bury, &c. which only hold Plea of personal Actions, but in this Action he shall recover Possession, and have a Writ of Habere fac' possessionem, and thereby he that hath a Free∣hold

may be put out of Possession. And in Sabin's Case M. 13 Car. 2. B. R. Ejectione Firme was brought in the City and Coun∣ty of Canterbury,* 1.13 and removed into the King's Bench by Habeas Corpus, and a Procedendo was prayed; but because Bail was put in in B. R. the Court denied the Procedendo, be∣cause they were thereby seised of the Cause, Cro. Car. 87. Halley's Case. M. 13 Car. 2. B. R. Sabin's Case. Siderfin, p. 231.

Now in such Cases of Franchises, as Can∣terbury, Oxon, the Cinque-Ports, &c. they sup∣pose the Lease elsewhere in the County,* 1.14 and it shall be tried where it's supposed the Lease to be made; and so by Wild in Sabin's Case. Upon Ejectment in the County of Canter∣bury one may declare upon a Demise in any part of the County of Kent, and so try it at Maidstone;* 1.15 for the Venire comes always from the place of the Demise, which was denied by Windham, the Body of the County being as another County from that of Can∣terbury.

But the reason why the Court denied a Procedendo in Allen and Burney's Case, was because the Plaintiff below had not actually sealed a Lease, as he ought to have done, be∣ing an Inferiour Court, M. 18 Car. 2 B. R. Allen and Burney.

Action was brought in the Court of the Marches of Wales in nature of Ejectione Fir∣me,* 1.16 and a Prohibition granted, because they are not to meddle with the Possessions of Men, unless in respect of force, plena Curia, 2 Rolls Rep. 309.

CHAP. II.

Who shall have Ejectione Firme, and in what Cases this Action lies, or not, in respect of Possession, in respect of Entry congeable, in respect of Exility of Estate. By Lessee of Copyhold, and how, and whether before Admittance, and the manner of declaring. Of 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 Satis∣faction 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 A∣ction, 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,* 1.17 That upon a Possession in Law, a Man shall never maintain an Ejectione Firme, but he ought to have actual Posses∣sion 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 Fir∣me, 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 Eject∣ment. 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 con∣fess Entry and Ouster; but it has been re∣solved, That if Inquisition upon Elegit be found, the Party before Entry hath the Pos∣session, 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 actual∣ly 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. ex∣tends 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 Acti∣on, N. B. 120. F.

He whose Entry is not congeable by Law,* 1.18 cannot have Ejectione Firme, as in case of a Formedon in Remainder and Discontinu∣ance.

Lessor grants the Reversion to A. Lessee Attorns, A. ousts him, Lessee shall have Eje∣ctione 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 for∣mer 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,* 1.19 there have been uncertain O∣pinions 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 Guar∣dian

of the Monastery of Otlery's Case ci∣ted, it was objected, That if Ejectment be maintainable by Lessee of a Copyholder (as it was adjudged in B.* 1.20 C.) then if the Plain∣tiff 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,* 1.21 may maintain an Ejectione Firme, because he is Les∣see 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 Ejecti∣one Firme lies upon it.

But in Petty and Evans's Case, in Eje∣ctione Firme brought by the Lessee of a Copyholder,* 1.22 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 Li∣cence

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 E∣vans.

In Ewer and Astwick's Case it was doubt∣ed by the Court (and so in several other Cases in former times) Whether the Plain∣tiff in his Declaration ought to set forth the Custom of the Manor that the Copy∣holder may Lease,* 1.23 &c. and then to shew that the Lease is warranted by the Custom. But now it's fully agreed, That the Plain∣tiff ought not to shew that the Lease is war∣ranted 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,* 1.24 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 is ejected, that he shall have an Ejectione Firme, without any Admittance of the Lessor, or without any Presentment that he is Heir, 1 Leon. p. 101. Rumney and Eves, Pop. 38 Bullock and Dib∣ler.

But a Copyholder Mortgagee must be ad∣mitted before he bring this Action,* 1.25 and he may bring his Bill against the Lord to be

admitted to inable him to try the Custom; 2 Keb. 357. Towell and Cornish.

Ejectione Firme may be brought by* 1.26 Exe∣cutors of Land let to their Testator for years upon ouster of the Testator for years per Stat. 4. Ed. 4. c. 6. which gives an Action for Goods taken out of the Possession of the Testator; the Reason is, because it is to re∣cover the Term it self, 7 H. 4. 6. b. 2 Ventr. p. 30.

If a Man ousts the Executors of his Lessee for years of their Term, they may have a special Action on the Case, or they may have Ejectione Firme or Trespass, 4 Rep. 95. a. Reg. 97. N. B. 92.

In Ejectment the Plaintiff was an Infant at the time of the Bill purchased,* 1.27 and sued by Attorney where he could not make an Attorney, but ought to have sued by Guar∣dian per Cur', it's erroneous, and Error en fait, Cro. Jac. p. 5. Rew and Long.

Deprivation in the Spiritual Court for Symony,* 1.28 disables from bringing Ejectment, because he can make no Lease, per H. Wind∣ham Buck's Lent Assises, 1668. Dr. Crawley's Case.

In Jefferson and Dawson's Case Council pray'd,* 1.29 That delivery of Possession might be awarded on Elegit, but the Court denied it, the Party having no day to interplead; and the Sheriff ought only to deliver Sei∣sure to enable the Plaintiff to maintain E∣jectment, and the Tenant may plead on the Ejectment, or else the Tenant may be turn∣ed out unheard, and so be remediless, and per. Cur' actual Possession ought not to be

delivered; but if it be, it's remediless; and yet before Entry the Plaintiff for whom the Inquisition is found,* 1.30 has Possession, and be∣fore actual Entry he may have Ejectione Firme, and is not like to an Interesse Ter∣mini, M. 25 Car. 2. B. R.

In some Cases Remedy against an undue Extent may be by Ejectment;* 1.31 as, The In∣quest by Practice of the Sheriff on Elegit, find the Defendant had Lands in A. where he had nothing, and so extended all his Lands in B. as a Moiety, this is avoidable by Ejectment, as to a Moiety, and the E∣vidence may be, That the Defendant had nothing in A. or to file the Writ of Elegit, and in Ejectment thereon (which else can∣not be brought) to plead the same;* 1.32 or in case of holding over, Ejectment lies against Tenant by Elegit, if he be satisfied at the extended Value, contra of a Judgment which is uncertain for Costs and Damages, 1 Keb. 891. Dakin and Hulme. 1 Keb. 858. Lord Stamford and Hubbard.

Intruder on the King's Possession,* 1.33 cannot make a Lease whereupon the Lessee may maintain an Ejectione Firme, tho' he may have an Action of Trespass against a Stranger;* 1.34 but a Judgment in Information of Intru∣sion pro Rege binds not a Stranger, but that he may enter and bring Ejectment; if it were otherwise this would be a Trap for any Man's Possession by lawful Title; and the Judgment on Intrusion is not in the na∣ture of Seisin or Possession,* 1.35 but only quod pars committatur & capiatur pro fine, and an En∣try may be made by the King's Patentee,

Hardress, p. 460. Friend and the Duke of Richmond.

If a Stranger entreth upon the King's Fermor, by such Entry he hath gained the Estate for years; and if he doth make a Lease to another, his Lessee may maintain Ejectione Ferme. A Lessee may have Ejectione Firme, tho' the Reversion be in the King. So that it seems the Ejector by his Entry hath gained the Land, 2 H. 6. 6. Dyer 116. b. 3 Leon. p. 206.

The Lessee of the King may bring Ejecti∣one Firme,* 1.36 tho' the King be not put out of the Freehold by the Words, He entred and expulsed him, Cr. El. 331. Lee and Morris.

It's said in Leonard, 1 part 212. Lessee of Tenant in Common of one Moiety,* 1.37 with∣out actual Ouster, cannot maintain Ejectione Firme against the Lessee of his Compa∣nion.

J.* 1.38 M. covenants to stand seised to the use of himself for life, and after to the use of his Daughters, until every one of them successive shall or may have levied 500 l. Remainder to his eldest Son. He had four Daughters at the time of his Dea•••• and the Land was worth 100 l. per Annum; the Father died in 30 El. the eldest Son im∣mediately entred, the eldest Daughter en∣tred in 42 Eliz. and made the Lease to the Plaintiff; Per Cur', she hath overpast her time, and cannot enter; for then she should prejudice her other Sisters, so as they should never levy their Portions, Cr. El. 809. Blackbourn and Lassells.

A Person outlawed may bring Ejectione Firme:* 1.39 For tho' a Person outlawed cannot after an Extent, prevent or avoid the King's Title by Alienation, yet the Outlawry gives no Priviledge to the Possession of a Disseisor, but that the Disseisee may enter and bring the Ejectment; for by the Out∣lary the King hath only a Title to the Pro∣fits, and no Interest in the Land, Hadr. 156. Hammond's Case vide.

If a Man ousts the Executors of his Les∣see for years of their Term,* 1.40 they may have a special Action on the Case, or they may have an Ejectione Firme or Trespass, 4. Rep. 95. a. Reg. 97. N. B. 92.

One seised of Lands in Fee-Simple,* 1.41 be∣comes Bail in an Action of Debt in B. R. and after Issue joyned, let the Land to B. the Plaintiff; Judgment is afterwards given against the Principal, and an Extent taken upon the said leased Lands, B. the Plaintiff being thereupon ousted, brings this Action of Ejectione Firme, Crok. Jac. 449. Kervile and Brokest.

Tenant for life,* 1.42 Remainder to his Issue in Tail; Tenant for life enters into a Stat' and dies, Conisee sues a Scire fac' against his Heir, who was Issue in Tail, and the Sheriff retorns Scire feci; and upon this, Execution without any Plea pleaded by the Heir, and the Heir being ousted by the Execution, brought Ejectione; Per Cur', the Heir shall be bound by this Execution, and he has no Remedy, neither by Ejectment, Writ of Error, nor by Aud' Querela, nor by any other way, but against the Sheriff,

if he have made a faux Retorn of the Scire fac', Siderfin, p. 55. Day and Guilford.

Rent granted with a Proviso,* 1.43 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 can∣not 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 Inden∣ture, grants a Rent Charge for life, to com∣mence after the Death of the Grantor; and if the Rent be Arrear, that the Gran∣tee

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,* 1.44 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.* 1.45 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 In∣dented,* 1.46 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 pre∣scribed by the Statute, with the Circum∣stances 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 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;* 1.47 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;* 1.48 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.* 1.49 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,* 1.50 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,* 1.51 and adjudged good per totam Curiam, 2 Roll. Rep. 352, 129. Beaumont and Coke.

As for the Amendment of Originals in Ejectione Firme,* 1.52 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,* 1.53 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,* 1.54 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,* 1.55 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,* 1.56 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,* 1.57 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.* 1.58 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,* 1.59 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,* 1.60 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.* 1.61 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,* 1.62 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.

CHAP. IV.

Against whom Ejectione Firme lies, or not, and of the casual Ejector. Of the old way of Sealing Leases of Ejectment by Corporations; by Baron and Feme; in what Cases now to be used.

EJectione Firme against one Simul cum, had been ruled to be good, and so used in the Common Pleas, tho' heretofore it was ad∣judged to the contrary, Stiles Rep. 15.

It lies against Baron and Feme, Lib. Intr. 253. 9. Rep. 77. e. Peytoe's Case. Plo. 187.

It lies against the Ejector or wrong Doer, be who he will.

When the Course was to seal an Eject∣ment to try a Title of Land,* 1.63 the Ejector in Law was any Person that comes upon any part of the Land, &c. in the Ejectment-Lease, tho' it be by chance, and with no intent to disturb the Lessee of Possession, next after the Sealing and Delivery of the Eject∣ment-Lease; and such an Ejector was a good Ejector, against whom an Action of Ejectione Firme may be brought to try the Title of the Land in Question. But he that was to try a Title of Land in Ejectment, ought not to have made an Ejector of his own, against whom he might bring his A∣ction; or to consent or agree with one to come upon the Land let in the Ejectment-Lease, with an Intent to make him an E∣ctor,

and to bring his Action against him; for by that means the Tenant in Possession of the Land, was after put out of Possession by a Writ of Habere fac' possessionem, with∣out any Notice given to him or his Lessor of the Suit; but now the Law is otherwise, and altered by the new way of Practice.* 1.64 For now it is not usual to seal any Lease of Ejectment at all in this Action, but the Plain∣tiff that intends to try the Title, feigns a Lease of Ejectment in his Declaration, and an Ejector, and draws a Declaration against his own Ejector, who sends or delivers a Copy thereof to the Tenant in Possession, giving him Notice to appear and defend his Title, or else the Ejector will confess, or suffer Judgment by Default: But if the Tenant or the Lessor will defend the Title, then▪ it is usual for them to move the Court that they may be made Ejector to defend the Title (that is) the Tenant appears, and consents to a Rule, with the Plaintiff's Attorney, to make himself Defendant in the room of the casual Ejector, and this the Court will grant, if he will confess Lease, Entry and Ouster, and at the Trial stand meerly upon the Title; but if they do not at the Trial confess Lease, Entry and Ouster, then the Judgment shall be entred against the casual (viz.) the Plaintiff's own Ejector.

Note, The Court said in Addison's Case, Mod. Rep. 252. That they take no Notice judicial∣ly, that the Lessor of the Plaintiff is the Party interested, therefore they punish the Plaintiff, if he release the Damages; but in point of Costs they take notice of him.

But before I proceed further,* 1.65 I hope it will not be tedious a little to shew how the Law and Practice was taken when Ejectment-Leases were sealed, and Entries to be duly made, and Warrants of Attorney made to deliver the Lease upon the Land by a Corpo∣ration, Baron and Feme, &c. especially con∣sidering that in Inferiour Courts the old way of actual sealing Leases is continued, Winch 50. 1 Brow nl 129. Godb. 72. Earl of Kent's Case.

And first, The way to execute a Lease to try a Title, the Land being in many Men's Hands, was to enter into one of the Par∣cels, and leave one in that place; and then he must go into another, and leave one there, and so of the rest; and then after he had made the last Entry there, he sealeth and delivereth the Lease; and then those Men that were left there, must come out of the Land. But when a Title was to be try∣ed by Ejectment, and a Lease to be execu∣ted by a Letter of Attorney, the Course was, That the Lessor do seal the Lease only, and deliver it as an Escrow, and the Letter of Attorney, and deliver the Letter of Attor∣ney, but not the Lease; for the Attorney must deliver that upon the Land. And upon Ejectment brought of Land in Two Villa∣ges, as of an House and Forty Acres of Land in A. and B. and a special Entry in the Land adjoyning to the House (viz.) the put∣ting in of an Horse which was drove out of the Land by the Defendant, this was ad∣judged 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,* 1.66 in the several Possessions of Two Men; and be∣ing so seised, made a Deed of Lease to the Plaintiff and a Letter of Attor∣ney to deliver the Deed and the Posses∣sion. The Attorney entred upon the Pos∣session of one of the Men, and there deli∣vers the Deed, and after enters in the Pos∣session of the other, and there doth deliver the Deed; the Question was, If it were good for the Land for which the second Delive∣ry 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 Te∣nants 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 In∣denture to B.* 1.67 rendring Rent for Years, and make a Letter of Attorney to seal and deli∣ver 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 E∣vidence, that the Lease was sealed and sub∣scribed by them both, and a Letter of At∣torney made by them to deliver it upon the Land; Per Cur' it's a good Letter of Attor∣ney by them both, and the Lease well deli∣vered, 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 Ou∣ster, and the Consequence. Of how much the Defendant shall confess Lease, Entry and Ouster. In what Cases there must be an actu∣al Entry, and where it is supplied by confes∣sing of Lease, Entry and Ouster. Rules con∣cerning 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 Suc∣cess, is sufficiently apparent, and needs no further Recommendation.

It must be observed (as was adjudged in the Mayor of Bristol's Case) that there,* 1.68 or in any other Inferiour Court, they cannot make Rules to confess Lease, Entry and Ou∣ster, 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 Ou∣ster; but the Court refused, the Defendant not being bound by the Rule below; be∣cause

they cannot proceed by way of de∣livering Declarations to the Tenants in Pos∣session, but as at Common Law by actual Lease sealed:* 1.69 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,* 1.70 and one Defendant gives a Note of what is in his Possession, the Plaintiff must sever his Acti∣on, 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 a∣gainst his own Ejector for the rest; and the Defendant shall not confess Lease,* 1.71 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 Posses∣sion, else the Plaintiff might clap in an Acre of his own to save Costs: and Agree∣ments 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,* 1.72 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 Ti∣tles, 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 De∣fendants 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,* 1.73 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,* 1.74 Entry and Ouster, and to stand upon the Title only, yet at the Tryal he would not appear; up∣on which the Plaintiff was Non-suit, and yet Judgment was for the Plaintiff upon the Rule, and he was ordered to pay the Jury.

And in Davies's Case, 13 Car. 2. B. R. H. de∣sired to be made Defendant, confessing Lease, Entry and Ouster, and at the Tryal resolved so to do; but the Court denied that he should pay Costs, because thereby the Plaintiff hath recovered, and so hath the Fruit of his Suit.* 1.75 But in Williams and Hall's Case, on Tryal at Bar the Defendants refused to confess Lease, En∣try and Ouster, per quod the Plaintiff was Non-suited; and it was moved, that in regard the Default was the Defendant's, that the Plaintiff might have Attachment against the Defendant, according to the Course of the Common Bench, which the Court granted. So upon a Judgment a∣against his own Ejector in default of con∣fessing Lease, Entry and Ouster, without a special Rule, no Costs shall be paid by H. the Tenant in Possession that made this Default, because the Plaintiff hath Bene∣fit of his Suit (viz.) Judgment against the Ejector, whereby he may recover Possession. Stiles p. 425. 13 Car. 2 B. R. 15 Car. 2. B. R. 1 Keb. 242.

The Form of the Rule of Confessing Lease, Entry and Ouster in B. sR. & B. C. Vide infra.

Of the Effect of an Entry according to the Rule, and where it will supply an actual Ouster, and where not.

Ejectment was brought by Devisee of a Rent,* 1.76 on Condition, That if a Legacy be not paid yearly, &c. that it shall be lawful for the Devisee to enter; and after the De∣mand made of the Rent, this Action was brought, and the Lease, Entry and Ouster was confess'd. Per Windham, this is only of an Entry sufficient to make the Lease that entitles to the Action, not of an Entry that gives Title to the Land; and for Non-pro∣ving of an actual Entry, the Plaintiff was non-suited: But otherwise in case of a Lease rendring Rent, to be void by Re-entry by Non-payment. In the Ejectment there was a Rule for confessing Lease, Entry and Ou∣ster, and the Question was, Whether this be sufficient without Proof of actual Entry? Per Hales C. J. the Confession is sufficient, else in every Case of Disseisin, &c. the En∣try must be proved; but in Assignment of Assignee of Lessee, such Confession doth not avoid the Assignment, but that must be proved; and this is as actual Lease on the Land, wich cannot be without Entry. And so is 1 Ventr. 248. Anonym. The Lessor of the Plaintiff had a Title to enter for a Con∣dition broken for Non-payment of Rent; Lease, Entry and Ouster was confessed, and the Court was moved, that in regard that the Lessor having such a special Title, and

no Estate till Entry, whether such an Entry shall be supplied by the general Confession, or that there should be an actual Entry; and it was held, it should be supplied by the ge∣neral Confession: But by Hales, If A. lets to B. and B. to C. to try the Title, the con∣fessing of Lease, Entry and Ouster extends only to the Lease made to C. and not to that made to B. P. 26 Car. 2. B. R. Abbot and Sorrel's Case. M. 25 Car. 2. B. R. Wi∣ther and Gibson. 1 Ventr. 248. Anonym.

In Okely and Norton's Case, M. 22 Car. 2. B. R. Judgment was prayed for not con∣fessing Lease, Entry and actual Ouster by one Coparcener against another; Per Cur' on the former Rule to confess Lease, Entry and Ouster generally, actual Ouster need not be confessed, and Judgment was against the casual Ejector.* 1.77 The Rule to confess Lease, Entry and Ouster, does not extend to con∣fess actual Entry upon a Lease, which is the Title; but the Court said, An Entry shall be intended, until the contrary be proved of the other side. The Case was upon Evi∣dence to a Jury at the Bar. The Plaintiff's Title was a Lease for Five thousand Years, which Lease was sealed and delivered at London; and the Council for the Defendant would put the Plaintiff to prove an actual Entry by force of this Lease; for it was agreed, That the Rule to confess Lease Entry and Ouster, doth not extend to it; but per Cur' it shall be intended that he entred, until the contrary be proved on the other side, M. 22 Car. 2. Okely and Norton. Sid. p. 223. Langhorn and Merry.

Upon a Tryal in Ejectment the Title of the Plaintiff's Lessor appeared to be by a Remainder limited to him for life upon divers other Estates, and that there was a Fine and Proclamation; but he within the Five years after his Title accrewed, sent two Persons to deliver Declarations upon the Land, as the usual Course was upon Ejectments brought; Per Cur' this is no En∣try or Claim to avoid the Fine, he having given no express Authority to that purpose, and the Confession of Lease, Entry and Ou∣ster shall not prejudice him in this respect, M. 25 Car. B. R. Clark and Phillips.

As for ones being made Defendant, the Rules are thus.

He that desireth to be made Defendant in Ejectment for as much as is in his Posses∣sion,* 1.78 or of his Under-Tenant, must give a Note to the Attorney of the Plaintiff in Writing of what the Particulars are, of which he is in Possession, or his Under-Tenant, to prevent Delay at the Assizes, T. 15 Car. 2. so ordered.

By Pinsent. in B. C. If one move that the Title of the Land do belong to him, and that the Plaintiff hath made an Ejector of his own, and therefore prays, that giving Security to the Ejector to save him harm∣less,* 1.79 he may defend the Title, the Court will grant it, but will not compell the Plaintiff to confess Lease, Entry and Ouster, except he will be Ejector himself. But it is not so in the Court of King's Bench, for

there in both Cases, they will compel him him to confess Lease, Entry and Guster, Stiles Rep. 368.

The Course of the Court is,* 1.80 That one that cometh in to be made Defendant in E∣jectment, upon his Prayer confessing Lease, Entry and Ouster, shall not be charged with any Actions by the by; because he comes in without Process or Arrest, only to defend the Title.

In Ejectment after Declaration and before Plea,* 1.81 he which had the Title, moved the Court for to alter the Plaintiff, because he was to give evidence; and the Court agreed to it, that he should alter the Plaintiff pay∣ing Costs, and giving Security for new Costs; and they may alter the Plaintiff in this Action upon the same Reason that they may alter the Defendant, which is usually done, 1 Siderf. p. 24.

Note,* 1.82 After Default (in Ejectment) the Defendant may confess Lease, Entry and Ouster, and may give evidence, and have all Advantages (except Challenges) and if the Plaintiff becomes Non-suit, any one for the Defendant may pray it to be record∣ed, Tryals per pays, 195.

The Defendant was by Rule of Court at the Tryal which was to be at the Bar to appear and confess Lease, 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 the Judg∣ment was for the Plaintiff upon the Rule, and he was advised to pay the Jury. Stiles Rep. 425. Harvey and Mountney.

Of the Ejectment-Lease.

You may observe what before is said, That it's a feigned Lease, and by the new Rule is to be confessed; and it's laid some∣times for three years, or five, or seven years: And it is good to lay it for longer than three or five years; for I have known by Injunctions and other Dilatories it hath worn five years out, and then the Plaintiff cannot have Judgment without beginning de novo.* 1.83 And therefore Pemble and Sterno's Case being adjourned into the Exchequer-Chamber, the Court ordered an Enlargement of the Lease or Term from seven to twelve years, which they may do by Law, no Lease ever being actually sealed, but declared on, and consented to, Tr. 21 Car. 2. Pemble and Sterne's Case.

The Lease was 24. Sept. Habend. from Mi∣chaelmas next, virtute cujus the Plaintiff entred,* 1.84 and said not when; Per Cur' it shall be intended on the day after Michael∣mas; but if it had been virtute cujus he en∣tred eod' 24 day of Septemb. it had been ill. P. 26 Car. 2 Hallam and Scot.

Lease of all Warrants Ejectment of Part.

Ejectment by Lessee of Lessee of the whole by the Daughters and Heirs of Sir Peter Vanlore,* 1.85 which was made by reason of the uncertainty of the Part claimed by the Plaintiff, 2 Keb. 700.

Lease made to try a Title in Ejectment,* 1.86 is not within the Statute of Buying of Ti∣tles, if it be not made to great Men, but to a Servant of him that hath the Inheri∣tance, 2 Brownl. 133.

Note, Ejectment may be brought upon a Lease made in the same Term, 1 Ven∣tris.

Upon a Lease made by Husbands and their Wives for the Tryal of a Title, and the same executed by Letter of Attorney; the Lease and Letter of Attorney were on∣ly sealed by the Husbands, and so not good; Per Cur' the Wives ought to have sealed al∣so, and the Entry of the Attorney ought to have been in all their Names. This by the old Course, 2 Roll. 2. 13.

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CHAP. VI.

Of Declarations. Of what things an Ejectione Firme may be brought, and what not. Ge∣neral Rules of Declarations in Ejectments. Variance between the Issue-Roll and the Im∣parlance-Roll. Of Entry and Ejectment sup∣posed before the Commencement of the Lease, virtute cujus he entred, how taken and expounded. Uncertainty in the Limitation of the Commencement, and no Day of the Date shewed. Et postea, &c. how expounded. The manner of Declaring by Coheirs, by Tenants in Common, by Baron and Feme, by Joynt-tenants, by a Corporation, by Copyhol∣der, by Administrator.

THE new way of Tryals in Ejectment by Confession of Lease, Entry and Ou∣ster, and standing only upon the Title, make some Persons conceive that Cases or Resolutions about Declarations in Ejectments (whose Form is now generally setled) to be useless and antiquated. And in truth they are so in a great measure; and yet notwithstanding there are several good Rules and Resolutions, as well relating to matters of Law as Practice, and Forms, even since the said new Method has been taken up, both as to what things an Ejectment may be brought, or not, and Delivery, Entry, Variance, and Amendments of Declarati∣ons; as also how Declarations ought to be, when Coparceners, Joyntenants, Corpora∣tions,

Baron and Feme, Tenants in Com∣mon, Administrators, and the like, are con∣cerned. And yet even those former Cases and Resolutions as to the Commencement of Leases and Demises on which the Decla∣ration is, and the Dates and precise Times of Entry and Ouster, deserve well to be considered; not only as so many curious Points of Law therein argued, of which it's not to be thought a general Lawyer would be ignorant; but because in Inferiour Courts the old way of delivering Declarations, is and must be used.

I shall therefore in the first place cite some of the principal Cases touching the manner of declaring in former times, as to the Dates and Commencement of Demises, &c. and then come to those Considerations and Rules which are of present Use, both as to Delivery, Entry, Forms, and the like, in which many Practisers may not be well informed, and which are founded upon late Resolutions. But first I shall shew how De∣clarations are to be laid in respect of the Matter and Things for which the Ejectment is brought; concerning which the Cases in our Books are very frequent, and very useful to be known.

Of what things an Ejectione Firme may be brought, and what not.

Ejectment lies not de una demo, because it may be a Dowe-house or Dwelling-house;* 1.87 but Cro. Jac. 654. in Royston's Case contra, that it lies de domo, as well as waste de do∣mibus,

but it lies de domo vocat' Holts, 2 Roll. Rep. 487, 482. Warren's Case. Cr. Jac. vid. in Pasch. 1650. Fry and Pooly. Hard. 76.

Ejectment lies not de uno tenemento.* 1.88 Eject∣ment was brought of an House and the Moiety of a Tenement; it lies not for the Moiety of a Tenement; Verdict was (in this Case) given for the Plaintiff and intire Damages.* 1.89 The Plaintiff my well release his Damages, as to the Tenement, and take his Judgment for the House, and then it shall not be Error, 2 Bulst. 28. Rothowick and Chappell.

Ejectment lies de uno Burgo,* 1.90 Hardr. 123. Danver's Case.

Ejectment de uno cubiculo,* 1.91 is good; as it was laid, it was unius Cubiculi, per nomen u∣nius Cubiculi being in such an House in the middle Story of the said House. The word Cubiculum is a more apt word than Camera. Ejectment de una Rooma, it was said had been adjudged good in B. R. So a Praecipe lies of an Upper-Chamber, 3 Leon. p. 210. 2 Rolls Rep. 48.

Ejectment de uno repositorio,* 1.92 Judgment was reversed, because it was uncertain, it not being expounded in English, it was intended a Ware-house, W. Jones 454. Sprig's Case. Cro. Car. 551. mesme Case.

It is not formal to bring Ejectment de unâ Capellâ,* 1.93 but it ought to be by the Name of a Messuage or House, 11 Rep. 25. b.

Ejectment de septem Messuagiis sive Tene∣mentis;* 1.94 it's ill after a Verdict for the uncer∣tainty, Cro. El. 146.

Ejectment de uno Messuagio sive tenemento vocat'* 1.95 the Black Swan, is good per Twisden; for the last words ascertain it. Had the Ver∣dict been general for the Plaintiff for the Messuages, and Non Culp' for the Tenements, it had been good: And in this case the Plain∣tiff cannot aid himself by releasing of part, as it might be, had there been Lands in the Declaration. De Messuagio sive Tenemento is ill after a Verdict, but if the Judge will al∣low the Jury to find for the Plaintiff for the Messuage and for the residue for the Defen∣dant, it had been good; but the Plaintiff may not aid himself by Release, Siderf. 295. Bur∣bury and Yeoman.

Ejectione Firme lies not de Coquina,* 1.96 but it lies by Bill in B. R. tho' Coke said it lies by Writ too, and the Law is all one, 1 Roll. Rep. 55.

It was adjudged in Stiles Rep. 215. That Ejectment doth lie of a Cottage,* 1.97 because the Description of a thing by that Name is suf∣ficient and certain enough to shew the Sheriff of what to deliver the Possession; but a Re∣covery lies not of a Cottage, Stiles p. 258. Hammond and Ireland. Cro. El. 818. Hill and Gibs.

Ejectione Firme lies de Pomario,* 1.98 and de Do∣mo, for they are certain enough to give Pos∣session, tho' a Precipe lies not of it; and ma∣ny things are recovered in Ejectment, which are not named in the Register, as Hopyard, &c. Cro. Jac. 654. Royston and Eccleston. Pal∣mer, 337. mesme Case. Cro. El. p. 854. Wright and Wheatly.

Ejectione Firme de quatuor molendinis,* 1.99 with∣out expressing whether they are Windmills or Water-mills, yet good, Mod. Rep. 9. Fitz Gerard's Case.

In Palmer and Humphrey's Case it was ad∣judged,* 1.100 That Ejectment lies de pecia terrae; but it was after reversed in the Exchequer-Chamber, Cro. El. 422. Palmer and Hum∣phrys.

And a Declaration de una pecia terrae con∣tinen' ducentas & unam Acram sive plus sive minus jacent' inter terras, &c. this was ad∣judged ill after a Verdict, and Nil cap' per Billam entred. So continen' dimidiam acram terrae vocat'. It was said in Hancock and Pryn's Case, Ejectment of a Close of Land, or de pecia terrae containing so many Acres, had been good, W. Jones, p. 400. Savil 176. Hardr. 57.

Ejectione Firme cannot be of a Manor,* 1.101 for that there cannot be an Ejectment of the Ser∣vices; but if they express further a Quantity of Acres, it is sufficient, and it lies of a Ma∣nor or the Moiety of a Manor, if the Attorn∣ment of Tenants can be proved; and there is none that brings Ejectment of a Manor, but they also add the Acres that contain it, to the end that if they prove it not a Manor, they may recover according to the Acres. Vide infra. Hetley 80. Norris and Isham. And p. 146. Warden's Case.

It was doubted by Rolls and the Court,* 1.102 if an Ejectment lies de Crofto, therefore the Plaintiff moved for a special Judgment for the rest of the Land contained in the Decla∣ration, and released the Damages as to the

Croft, and had it; but afterwards in Meeres and French's Case it was agreed, That Eje∣ctione Firme lies of a Croft, and Dower, and Assise will lie of a Croft, because it is put in View of the Recognitors, tho' a Formedon nor Praecipe will lie of it, but 2 Car. p. Rot. 301. Holmes and Wingreve, de Crofto is ill in Ejectment, tho' good in Assise. Rolls Rep. p. 30.

Ejectment de uno Clauso▪* 1.103 without saying how many Acres, is ill. A Man makes a Lease of a Garden containing Three Roods of Land,* 1.104 Lessee is ousted and brings Eject∣ment; the Justices differed in Opinion, whe∣ther it were good or not; but all agreed the best order of Pleading to be, to declare, That he was ejected of a Garden containing Three Roods of Land, Godb. p. 6.

Parcella terrae does not comprehend a Gar∣den in Ejectione Firme,* 1.105 Moor 702. Palm. 45.

Ejectment de uno Clauso continen' tres Acras per estimationem, ill; but Indictment quare vi & armis in Clausum continen' tres Acras per Estimationem fregit, is good. Debt or Demise of Seven Acres per estimat', is ill, Dor∣mer's Case. Brownl. p. 142.

Tho' in Co. 11 Rep. 55. Savill's Case, That an Ejectione Firme lies not of a Close, yet the contrary had been since adjudged be∣tween Hykes and Sparrow, Tr. 15 Jac. Rot. 774. Cr. Car. 555. Siderf. 229.

Declarat' is Quod cum dimisit to him unum Messuagium, unum Clausum vocat' Dovecoat-Close continen' tres Acras eidem m••ssuagio spectan', per Cur' it does not lie of a Clo••e,

tho' coupled with other Words, because the Quality of the Soil is not alledged, as to say, Land, Meadow, Marsh, &c. And by Coke, if he had bound the Land without shewing the Quality, it had not been good; tho' it was objected, that by all the Words put together, here is sufficient certainty to put the Party in Possession; and yet some Reports are to the contrary. Ejectione Firme of a Close called White-Close, was said to be held good in Ellis and Floyd's Case cited in Madonell's Case. But in Ireland Ejectment was of a Close called the Upper Kibwell, and of another called the Lower Kibwell, con∣taining Three Acres of Land, was held good.* 1.106 And it is a sure Rule, That the cer∣tainty of the Land ought to be described, and the Quality, &c. And therefore the Case of Jones and Hoell seems not to be Law, which was Ejectione Firme of Seven Closes, one called Green Mead, and so gave to the others several Names, and the Verdict was for the Plaintiff, and by the Court there it's well enough; For, said they, when a Name is given to every Close, tho' the Contents of Acres are not mentioned, viz. so many of Land, so many of Pasture, i'ts sufficient, and aided by the Statute of Jeofayls, 11 Rep. 55. Savill's Case. 1 Roll. Rep. 55. mesme Case. Cro. Jac. 435. Wilks and Sparrow. 2 Roll. Rep. 1. 608, 189. Macdonel's Case. Cro. El. 235. Jones and Hoell.

In Martin and Nichol's Case Error was assigned,* 1.107 because the Declaration was of a Messuage, and Forty Acres of Land Mea∣dow and Pasture thereunto appertaining,

and it was not distinguished how much there was in Land, and how much in Pa∣sture, and the Judgment was reversed, Cro. Car. 573. Martin and Nichols.

Observe,* 1.108 In Ejectione Firme or a Praecipe of 100 Acres, this is according to Statute-mea∣sure; but if one bargain and sell 100 Acres of Land to another, that shall not be ac∣cording to the Statute-measure, but after the usual Account in the Country; in Andrews Case cited in Ewer and Heydon's Case.

The Declaration was,* 1.109 That he was e∣jected è duabus Acris fundi, Anglicè, Hop-ground. Per Rolls, it is good in a Grant, but not in Declarations, and the Anglice here does not help it; for the Anglicè is not to interpret a Latin Name by which it is cal∣led, Stiles Rep. 202, 203. Meers and French.

Ejectment lies de decem Acris Pisarum; for in common Acceptance Ten Acres of Pease,* 1.110 and Ten Acres of Land sowed with Pease is all one, 1 Brownl. 150.

Ejectment of Three hundred Acres of Waste,* 1.111 inter alia, &c. per Cur' Waste is un∣certain, and may comprehend Land of any Quality, and the Sheriff will be at a Loss what Land to deliver; and after the Plaintiff released the Waste and Damages, and took Judgment of the Residue, Hardr. 57. Hancock and Prynn.

Ejectment lies de prima Tonsura, of the first Crop,* 1.112 Cro. Car. 362. Ward.

Ejectment lies of a Cole-mine,* 1.113 for it is a Pro∣fit well known. Ejectment of Land and a Colepit in the same Land, ruled to be good,

because it is in a personal Action, aliter in a Real Action, because it is his petitum, 1 Rolls Rep. 55. Cro. Jac. 21. Harbotle and Placock.

It lies of a Boillary of Salt-water,* 1.114 Siderf. 161.

Ejectment lies not de rivulo seu a∣quae cur∣su,* 1.115 therefore Godbolt, p. 157. n. 213. is not Law; nor a Precipe lies of it, and Livery and Seisin cannot be made of it; for non moratur, non est firma, but is always fluctuant, and Execution by habere fac' possessionem cannot be made of it, but the Action ought to be of so many Acres of Land aqua coopert. but if the Land under the River or Place appertains not to the Plaintiff, but the Ri∣ver only, then upon Disturbance his Reme∣dy is only by Action on the case upon any Diversion of it, and not aliter, Yelv. 143. Challoner and Thomas. M. 6 Jac. Challoner and Moor. Cro. Car. 492. Herbert and Llangh∣lyn's Case.

Ejectione firme lies not de Profit apprender,* 1.116 and so not of a Common or Rent, nor of a Pischary, it must be terra aqua cooperta in such a River, tho' the Court seemed doubt∣ful of it in M••llineux's Case, which was Eject∣ment of an House and Lands in T. nec non de Libera Pischaria infra Rivulum de Trent in which Action Damages were entirely given;* 1.117 but to avoid the Question, the Plaintiff re∣leased his Damages totally, and his Action quoad the Pischary, and had Judgment for the Residue, Cro. Jac. 146. Molineux.

Ejectment was brought in Ireland of forty Messuages,* 1.118 Five hundred Acres of Land, an Hundred Acres of Bogg in the Villages and Territories of D. S. and V. Bogg is an usual Word, and well known there, and if it were not, the Plaintiff may release his De∣mand as to that, and have Judgment for the Residue. Another Exception was, because it was in Villis & Territoriis;* 1.119 but per Cur' it's well enough, and of the same Sense; and if not, it is but Surplusage, as to the Terri∣tories,* 1.120 but Ejectment of 500 Acres of Moun∣tain in Ireland, is ill, for it is not of one Nature, but several, as Turfs, Pasture; but a Precipe is good de Saliceto, de Stagno, de Dominio, by the general Notice the Country hath of them where the Lands lie, and of their Quality. On Ejectment in Ireland Er∣ror was brought in B. R. here, because he brought Ejectment of 40 Acres of Wood,* 1.121 and 20 Acres of Under-wood, and so one thing twice demanded, because Under∣wood is a Species of Wood, sed non alloca∣tur, because this does not appear to the Court, and this shall not be alledged for Er∣ror, but ought to be taken in Abatement of the Writ, Cro. Car. 512. Mulcarry and Eyres. 2 Roll. Rep. 166, 189. Macdonnel's Case. 2 Rolls Rep. 487, 482. Warren and Wake∣ley.

Ejectione Firme be omnibus Decimis is not good;* 1.122 it lies not de quadam portione Decima∣rum generally, but de quadam portione grano∣rum & foeni is good; the Nature ought to to be shewed, though not the Certainty; and the Ejectment was supposed in May,

when there is not any Tythes, and so not good. It may be that all the Tything con∣sists in Modo decimandi for Payment of an yearly Sum in Satisfaction of Tythes, where∣of no Ejectione Firme lies. It was a Que∣stion in Preist and Wood's Case, Cr. Car. 301. Whether an Ejectione Firme lay of Tythes only? it may be of a Rectory, or such a Chapel, and of the Tythes thereunto belong∣ing, whereof an Habere fac' possessionem may be; but it was adjudged pro Querente. The Ejectment was supposed in taking so many Loads of Wheat and Barley, being severed from the Nine Parts, 1 Roll. Rep. 68. cited in Worral and Harper's Case. 11 Rep. 25. Harper's Case. Cro. Car. 301. Preist and Wood.

Ejectment of so many Acres Jampnorum & Bruerue,* 1.123 and does not express how ma∣ny of each, yet good, Mod. Rep. 9. Fitz∣gerard's Case.

Ejectione Firme de una virgata terrae lies not,* 1.124 and so it was adjudged in the Exche∣quer-Chamber. Error was brought of a Judg∣ment in C. B. in Ejectment de Virgata terre on general Verdict, which is ill, being un∣certain in every County; but the Plaintiff below might have Released Damages as to that, but now it is too late, Cro. Eliz. 339. Jordan's Case. 3 Keb. 450. Hall▪ and Johnson.

Ejectione Firme lies not de Pannagio.* 1.125 Q. de Parco, Sid. 417.

It lies de Herbagio,* 1.126 2 Rolls Rep. 481, 482.

Ejectione Firme was brought for Entry in∣to a Messuage sive Tenementum, and four A∣cres

of Land to the same belonging, Per Cur' the Declaration is uncertain; but it was said, as to the four Acres, it was certain e∣nough, and the Words to the same belong∣ing, are meerly void, and the Plaintiff re∣leased Damages, and had Judgment, 3 Cro. 228. Wood and Pain. Cr. El. 186. mesme Case.

Ejectment lies not of a Free Warren,* 1.127 1 Keb. 500.

Count of the Moiety of two Acres of Land,* 1.128 is well enough, and Trespass lies a∣gainst the Sheriff, if he does not execute on the right places, 1 Keb. 278. Lufton's Case.

Per Cur' Ejectment lies de uno Stabulo,* 1.129 or where-ever the thing is so certain that the Sheriff may do Execution, 1 Keb. 236. Whitacre's Case.

Separalis Pischaria usque ad filum aquae can∣not be counted upon,* 1.130 but per Windham such Evidence might be given of such Pischary by Metes and Bounds, 1 Keb. 290. Sir Chr. Griese and Adams.

Ejectment lies de Capella,* 1.131 per Windham, 1 Keb. 438.

Ejectment was laid on Demise at T.* 1.132 of an House and Land in quodam campo juxta le Castle-hill, which per Cur' is ill (on motion in Arrest of Judgment;) for no Execution can ever be directed to any Sheriff; and it must appear where the Land demised lieth, 1 Keb. 777. Took and Atho.

Ejectment of Ten Hides of Land is good; a Hide of Land is the same as Carucat',* 1.133 which is as much as a Plow which is usually intended to have six Horses may manure in

a year, and being 100 or 120 Acres in Northampton-shire, 1 Keb. 877. Wright and Sherrard.

Ejectment de 7 Messuagiis sive Tenementis is ill after a general Verdict,* 1.134 and it's on De∣murrer; this might have been helped by ta∣king Verdict of either: So it is when the Ejectment is de Messuagio & Tenement', it's ill after General Verdict, 2 Keb. 80, 82. Burbury and Yeomans.

Ejectment does not lie of a Light house,* 1.135 but Action on the Case, 2 Keb. 114.

Ejectment of the Pannage of a Park, is ill, 2 Keb. 460.

Ejectment of a Close of Meadow doubted in Steel and Stanly's Case.* 1.136 M. 22 Car. 2. B. C.

Ejectment of 600 Acres of Fen-Marsh,* 1.137 Mea∣dow, arable Lands: Twisden asked the Plaintiff whereof they would take their Verdict, if they would have it of Marsh; and as such give Execution of the Fens in Question, 2 Keb. 23. Downham and Walden.

Ejectment de 20 Villis & Terris in Ireland,* 1.138 the Court conceived it wellenough on 1 Cro. 512. the Original Judgment being in C. B. and affirmed in B. R. there, 2 Keb. 745.

Ejectment of Two Mills, not saying what, good, 2 Keb. 875.

Ejectment of a Messuage includes a Gar∣den,* 1.139 3 Keb. 44.

Ejectment de virgat' terrae ill on General Verdict,* 1.140 being uncertain in every County; but the Plaintiff below might have Released Damages, as to that; but now it is too late. This was in 〈◊〉〈◊〉 of a Judgment in

B. R. 3 Keb. 450. Hall and Johnson.

Ejectment of Moor or Meadow,* 1.141 is ill, 3 Keb. 529.

Ejectment lies not of Common or Pischary alone,* 1.142 yet being after Verdict, it should be intended appurtenant, and so well e∣nough: This was in Ejectment of a House and 40 Acres of Pasture, Keb. 738. Barton's Case.

Now as to Declarations in this Action, I shall lay down some General Rules.

1. The Plaintiff must declare on one Ti∣tle only; and therefore in the Case of the Lord Chandois and Pitts, the Count was of three several Leases of the whole to the De∣fendant; the Council prayed that one B. may be made Defendant, and that the Plain∣tiff might elect to proceed on one only Ti∣tle, which the Court granted, and said, Al∣tho' the Party may declare on several Leases, one at, and another from such a Day, yet cannot declare on several Lessors. And the Court ordered the Plaintiff to elect one Ti∣tle only, Trin. 22 Car. 2. B. R.

2. In Ejectione Firme of a Close, the Quan∣tity of them and their Nature ought to be expressed (viz.) Land, Meadow or Pasture. Its a sure Rule the Certainty of the Land ought to be described and the Quality, 11 Rep. 55. Savill's Case.

3. In Ejectione firme Surplsage in the Count, is not vitious, Dyer 304, 305.

4. If the Entry and Ejectment be suppo∣sed in the Declaration to be before the Com∣mencement of the Lease, the Declaration is void. Vide Postea.

5. It must be alledged in what Vill the Tenements are. Vide infra.

6. The Plaintiff must make his Title truly. Vide infra p. 72. b.

The Entry to deliver Declarations in Ejectment, is not sufficient to avoid a Fine, without express Authority to enter to avoid the Fine; so was the Case reported, 2 Saun∣ders 319. Tenant for Life levies a Fine sur Conisance de droit come ceo, with Proclamati∣on, and he in Reversion for Life within five Years after the Death of Tenant for Life, directs one to deliver a Declaration in E∣jectment to the Tenant in Possession; this shall not amount to an Entry to avoid the Fine, tho' this was the Declaration which contained the Lease upon which the Eject∣ment was brought, Keb. 555. Clerk and Py∣mell. M. 21 Car. 2. B. R.

DECLARATION.

In Ejectment in B. C. the Plaintiff there declares in the first Declaration,* 1.143 which is called the Imparlance-Roll, of a Lease made the 20th of September for five years then next ensuing; and after Imparlance upon the Issue-Roll (for there the Plaintiff useth to declare again after Imparlance) the Plaintiff declares of

a Lease made the 30th of January the same year Habend' for five years from the 20th of December before; and upon Issue found pro Quer' per Cur', it's erroneous; for he de∣clared upon one Lease, and went to Issue upon another; for when a Lease is made the 30th of January Habend from the 20th of December before, this is but a Lease in Inte∣rest till the 30th of January, and not before, and only in Computation from the 20th of December,* 1.144 and by the Prothonotaries, the Im∣parlance-Roll is the material Declaration; and if Variance be from it in matter of Sub∣stance, this is not good nor amendable, tho' it was urged, That the last Declaration shall be taken as a new Declaration, without any Reference to the other, and then it shall be good, 1 Roll. Rep. 448. Millward and Watts. 3 Bulstr. 229. Millward and Watts. Cr. Jac. 415. mesme Case.

But in Merril and Smith's Case, Cro. Jac. 311. the first Declaration was, That T. S. 25th of March 6. Jan. let to the Plaintiff the Land, &c. for seven years, by Vertue whereof the Plaintiff entred and was pos∣sessed until the Defendeant postea scil. 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 De∣claration, 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;* 1.145 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 De∣claration 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 Declara∣tion quod p••stea scil' 6 Jac. The Defendant ejected him, is certain enough for the year wherein he made the Ejectment; so it ap∣pears 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 ma∣king of the Lease, and the Action brought, it's good enough, tho' there is not any cer∣tain day alledged, Cro. Jac. 311. Merril and Smith.

Original in Ejectment was brought against H.* 1.146 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,* 1.147 if the Entry and Eject∣ment be supposed in the Declaration to be before the Commencement of the Lease, the Declaration is void, as in Powre and Haw∣kins'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 de∣clares of a Lease made by C. 6 of May Anno septim••, of a Messuage, &c. and that the Plain∣tiff entred and was possessed qu••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,* 1.148 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 o∣ther; and in this Case the Ejectment is sup∣posed an Year before the Lease made; for the Lease is Anno septimo, and the Ejectment supposed to be made Anno sexto, yet the De∣claration was adjudged good, and the word sexto to be void: For the day of the Eject∣ment 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 De∣claration was held good, and the 4th of September is impossible and repugnant, and the postea ejecit is well enough. But in ••••od∣gaine'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 De∣fendant 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 D••isseisor. 2. Because the Declaration is con∣trary in it self. And Clifford's Case, Dyer 89. a. and Gr••en and Moody's Case were ci∣red. 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.* 1.149 P. 22 of May 20 Jac. of, &c. Hab. à primo die Maij for three Years, virtute cujus the Lessee en∣tred 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 Al∣legation of the first day of May is but for

the beginning of the Term; and the Decla∣ration being quod virtute dimissionis, he en∣tred postea iisdem die & Anno, &c. that re∣fers 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 Dis∣seisin; but where no Interest passes, as in Cases of Obligations, Contra. In Douglas and Shank's Case. Cr. El. 766. the Plaintiff de∣clares of a Lease for years Habend' à die datus, virtute cujus dimissionis he entred,* 1.150 and was possess'd until he was ejected by the Defen∣dant. 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;* 1.151 the strongest shall be ta∣ken against the Plaintiff (viz.) That he en∣tred the day of the Lease made, and that is not supplied by the words virtute cujus; but no Judgment was given, because two a∣gainst two: yet in Dyer 89. in margine it's said, because he did not aver in facto, that he entred after the day of the date (for the Lease doth not commence till the next day) that Judgment was arrested absente Popham. And another case is there cited, M. 44. or 42.

El. B. R. in Ejectione Firme upon a Lease made to commence at Michaelmas, and the Plaintiff declares, That he, virtute dimissio∣nis, &c. And it was moved in Arrest of Judg∣ment, because he saith not, he entred after Michaelmas. And Dyer 89. was cited, and Gaudy and Fenner held it ill; but per Popham it is aided by the Statute of Jeofayis, because it is Form only, and the Demise is the Substance; and per Popham after Michael∣mas he is Termor by the Continuance of the Possession, quod Fenner and Gaudy negave∣runt. But in Wakely and Warner's Case E∣jectment was brough in Ireland, and Judg∣ment pro Querente.* 1.152 It was assigned for Er∣ror that the Plaintiff shews a Lease made to him to commence at a day to come, virtute cujus he entred, and was possest until eject∣ed by the Defendant, and shews not when he entred, either after or before the day at which the Lease commenced; sed non alloca∣tur, because he said virtute cujus, &c. But by Lea Chief Justice, if he had said praetextu cujus, it had been otherwise, Moor 466.

Ejectment of a Lease made the 12 of Dec.* 1.153 Habend' à primo die. On Not guilty, the Jury find a Lease made in haec verba, which was dated primo Decemb. Hab. from henceforth, but delivered the 12th of Decemb. and the Question was. Whether this be according to the Declaration? It was objected, That from the day of the Date, and from hence∣forth are several Commencements, for the one begins the day it was sealed, the other the day after, but per Cur' they are all one, being a Computation of time from the time

past,* 1.154 and both shall be pleaded to begin from the day of the Date, when the Lease is afterward sealed another day. But if he declares of a Lease the first of December, Hab' à die datus, the Ejectment cannot be alledged the same day; but if the Lease be made the first of Decemb. Hab. henceforth, the Eject∣ment may be alledged the same day. So was the Case of Osborn and Ryder: Eject∣ment on a Lease made 1 Jan. 3 Jac. Hab. à die datus, and the Ejectment was the same day, and ruled to be good; tho' the Hab. is as much as to say, from the day of the Date; but per Cur' the Date is the time of the Delivery, and it differs from the day of the Date; wherefore the Ejectment alledged postea the same day is good enough, Cro. Jac. p. 258. Lluellyn and Williams. And p. 135. Osborn and Ryder.

Ejectione Firme of a Lease dated the 6th of December 17 Jac. Hab. à die datus, upon Evidence the Lease was shewed, and was dated the 6th of Decemb. 19 Jac. Hab. à die confectionis, the Plaintiff was Nonsuited, Cr. Jac. Scavage's Case.

The Plaintiff declares upon a Lease made the 10th day of October Hab. from the 20th day of Novemb. for five years; the Question was upon a special Verdict, Whether this was a good Lease or not. Judgment was ar∣rested. It shall not begin from the time of the Delivery;* 1.155 but it's an uncertain Limita∣tion, and cannot be known what November he meant, last past, or next ensuing. But the Law will reject an impossible Limitation, as from the 31st of Septemb. because it cannot

be any part of the Parties Agreement. The Declaration was, Quod cum J. H. by his In∣denture bearing date the 20th of May, 32 Eliz.* 1.156 had let to him an House, and shews not when the Lease was made; for he doth not shew any day of the Delivery, per Cur' it's good: For it shall be intended to be de∣livered at the day of the Date, Mod. Rep. p. 180. 3 Leon. p. 266. Kniver and Cope.

In Ejectment of the Manor of D.* 1.157 contain∣ing 250 Acres, be it more or less, with Let∣ters of Attorney reciting, Whereas J. the Lessor had made a Lease of a Manor contain∣ing 250 Acres, and Authority to make Li∣very according to the recited Lease, per Cur' the Variance is fatal, and the Plaintiff was nonsuited, 3 Keb. 691. Smith and Talbot, M. 18 Car. 2.

Plaintiff declares,* 1.158 That P. C. by Inden∣ture apud S. let unto him an House and 20 Acres of Land by the Name of all the Te∣nements in S. After Verdict Judgment was Arrested, because it was not alledged in what Vill the Tenements are,* 1.159 and the na∣ming of the Vill in the Pernomen is not ma∣terial, Cr. El. 822. Gray and Chapman.

50 Hobert 89. Rich and Shere. Declaration was, That at E. in Com' praedict' he did de∣mise one Messuage, four Gardens, Two hun∣dred Acres of Land, Eighty Acres of Pasture called East-Dizard in the said County. On Not guilty the Plaintiff had Judgment; it was Error, because the Plaintiff in his Decla∣ration did not shew in what Town, Parish, Hamlet or Place the said Tenement called East-Dizard lay; and Judgment was rever∣sed in the E•• chequer-Chamber.

Declaration was of a Lease of Serjeant Hele, That he, the 16th of January, 44 El. by Indenture dated the 2d of January, de∣mised, &c. it was moved, That the Decla∣ration was not good, because it is that he demised the 16th of Jan. by Indenture da∣ted the 2d of Jan.* 1.160 and he does not say primo delibat' the 16th of Jan. for otherwise it shall be intended to be delivered the day it bears date. But per Cur' it's good; for tho' a Deed shall be intended to be delivered the day it bears date, unless the contrary be shewed, yet when it's said, he demised such a day by Indenture dated such a day before, it must be necessarily intended it was not delivered the same day it bears date, but upon the day of the Demise, as it is alledged, Cro. El. 890. House and Laxton. Cro. El. p. 773. Hall and Denby.

And the Verdict often aids and intends, that it was delivered the same day it bears date, as in Heaton and Hurleston's Case. The Declaration was, Whereas J. S. by▪ Inden∣ture the 9th of June 19 Jac. dimisisset, &c. Habend' terminum praedict' à die datus sigilla∣tionis Indenturae praedictae for three years; vir∣tute cujus the Plaintiff the 10th of June 19 Jac. entred, and was possessed until, &c. and Verdict pro Quer' on Not guilty, per Cur.' when the Verdict has found him guilty upon the Declaration, and the Ejectment is alledged according to the Declaration, it may well be intended, that the Indenture bore date, and was sealed and delivered the same day mentioned in the Declaration of the Lease, tho' it was objected, That nei∣ther

the day of the Date, nor of the Sealing and Delivery of the Indenture are mentioned, and so the Declaration uncertain; but Judg∣ment pro Querente, Cro. Jac. 646. Heaton and Hurlestone.

Now in Wakely and Warren's Case,* 1.161 tho' the Plaintiff does not shew in his Declaration when he entred, either after or before the day on which the Lease commenced, yet it's good enough; because he saith, the Lease to him made, was to commence at a day to come, virtute cujus he entred, and was pos∣sest until, &c. aliter had it been, if he had said praetextu cujus, 2 Rolls Rep. 466. Wakely and Warren.

Now the Judges favour Declarations in Ejectment, as may be seen, 1 Ventr. 136. The Plaintiff declares in Ejectment, That J. S. demised to him per quoddam Scriptum Obligatorium, &c. Habend' à die datus Inden∣turae praedictae; per Cur' the Writing shall be intended an Indenture, tho' it be called Scri∣ptum Obligatortum, and every Deed obligeth; but if it shall not be intended Indented, then the Lease shall begin presently, as if it had been made from the 4th of September.

But a Declaration was of a Lease Hab. à die datus Indenturae praedictae, and does not speak of any Indenture before, and the De∣claration was adjudged naught. But Ejecti∣one Firme of a Lease made the 20th of Au∣gust Hab. from Michaelmas then last past ante datum hujus Indenturae, and neither shewed the Indenture nor the Date thereof, and per Cur' it's well enough. The Addition ante ••••tum Indenturae shall be void, the other be∣ing

good,* 1.162 and the beginning of the Lease appearing certain enough, Hetley 63. Brady and Johnson. Cro. El. 606. Darrel and Mid∣dleton.

Ejectione Firme of a Lease made the 21st. of Octob. 4 Jac. & quod postea scilicet eodem 21 die Octob. Anno tertio supradicto he eject∣ed him: And the Addition of an Year, which was not mentioned before, and which is repugnant to that day which was mentioned, is idle, and shall be taken for null, & postea the same day shall be good enough, Cro. Jac. 154. Brigate and Short.

Error was assigned,* 1.163 for that the Plaintiff did Count of the Lease of the fourth part of an House in N. in four parts to be divi∣ded, by force of which he entred in tene∣mentum praedictum, and was inde possessionat' till the Desendant did eject him de tenemen∣tis praedictis, whereas he ought to suppose his Entry into the fourth part, and the Ejectment of the fourth part, sed non alloc'; for the Entry and Ejectment supposed de tenementis praedictis shall not be intended of the intire Tenement, but of the fourth part of the House, according to his Declaration, Cr. El. 286. Rawson and Mainard.

Ejectment for Tythes, not saying by Deed, Judgment was reversed, 2 Keb. 376. Angell and Rolf.

The Declaration was of several Messuages in the several Parishes of St. Michael, St James, St. Peter and St. Paul, and that part of the Premisses lay in the Parishes of St. Pe∣ter and St. Paul; but that there is no Parish

called the Parish of St. Peter, nor none called the Parish of St. Paul; per Cur' the Copula∣tion (Et) shall be referred to that which is real, and hath existence, ut res magis valeat, to make them both one Parish; and the words, several Parishes, is supplied by the other Parishes aforenamed, Hardr. 336. Ingle∣ton and Wakeman.

By Coheirs or Coparceners.

Declaration by Coparceners,* 1.164 Quod dimi∣serunt is good; therefore Molliner and Robin∣son's Case, Moor 682. where the Lease was made by two Coparceners, and it was de∣clared, Quod dimiserunt: To which it was ex∣cepted, that the Lease is the several Lease of each of them for his Moiety, which was there ruled a good Exception, is not Law, 2 Brownl. 207. Cro. El. 615. 2 Keb. 192. Moor 682.

And now Ejectments in such Cases are by the Lessee of a Lessee of the whole by many Coheirs,* 1.165 which is by reason of the Uncer∣tainty of the part claimed by the Lessors; and per Cur' a Lease of all parts warrants the Lease of all, 2 Keb. 700.

By Tenants in Common.

If Two Tenants in Common joyn in a Lease for years to bring Ejectment, and Count quod dimisissent, it's naught, for it is a several Lease of their Moieties, and they must de∣clare, Quod cum one of them dimised the one Moiety, and the other the other Moiety, 1 Brownl. 13. Cr. Jac. 166. Mantley's Case.

If one Tenant in Common take the whole Profits, the other has no Remedy by Law against him; for the taking the whole Pro∣fits is no Ejectment, but if he drive away the Cattel of the other Tenant in Common off the Land, or not suffer him to enter and oc∣cupy the Land, this is an Expulsion, and he may have Ejectione Firme for the one Moie∣ty, and recover Damages for the Entry, but not for the mean Profits, 1 Instit. p. 199. b.

By Baron and Feme.

The Plaintiff declares of a Lease made to him by Baron and Feme generally, and does not alledge it to be by Deed; it was a great Question in our Books, whether this be good or not; but now it's ruled to be good by many Precedents, 2 Rep. 61. Wis∣cot's Case.

By Joyntenants.

C. and R. and W. Daughter to R. are Joyntenants for years; W. lets her part to C. and C. and R. joyn in this Lease of the en∣tire Land to the Plaintiff for three years. Popham and Fenner held, That this Lease well warrants the Declaration; for upon the matter they both let the entire, and upon this general Count it is good. Yelver∣ton and Williams è contra, because the Count supposeth they both let the entire as Joyn∣tenants; for so it is intended by the general

Count, which appears to be false, for they two let two Parts joyntly, and the one of them having a third Part, as Tenant in Common,* 1.166 lets that only, and so the Decla∣tion ought to have shewed the Truth and the Special Matter. And because it is diffi∣cult, they use in such Case to make a Lease, and the Lessee to make a second Lease, and the second Lessee to declare generally; and so all the matter shall come in Evidence. Fleming, before whom it was tryed by Nisi prius, over-ruled it, that this Declaration was well maintained by the Lease, and the Jury gave a Verdict according to his Opini∣on, Cro. Jac. p. 83. Jordan and Steere.

Upon a Lease by Tenant for life and him in Remainder.

A. Tenant for life, Remainder to B. in fee, they both by Indenture joyn in a Lease to the Plaintiff; Per Cur' this is the Lease of A. during his Life, the Confirmation of B. and after the Death of A. it is the Lease of B. and the Confirmation of A. And because the Plaintiff in Ejectment had counted of a joynt-Lease by A.* 1.167 and B. it was adjudged against him, 6 Rep. 15. Treport's Case.

So is the Case in Popham p. 57. upon a Demise by Dorothy Pool and Robert Smith, it was thus on a Special Verdict: Dorothy was Tenant for Life, Remainder to Smith in Fee, and they being so seised, made the Lease in the Declaration, Per Cur' the Lease found per the Verdict doth not warrant the Lease alledged in the Declaration; for during

Dorothy's Life it's her demise, and not the demise of Smith, but as his Confirmation for that time; for he had nothing to do to meddle with the Land during the Life of Dorothy, and after her death it shall be said to be the demise of Smith, and not before, Poph. 57. King and Berry.

By a Corporation.

The Plaintiff declares upon a Lease to him made by the President, Fellows and Scho∣lars of St. John's Colledge, Oxon. and in the Conclusion he doth not say, hic in Curia pro∣lat', Per Williams it is not good. The Eject∣ment-Lease being made by a Corporation, they sealed the Lease and delivered it by their Attorney, having a Letter of Attorney from them to deliver the same; they can∣not do this in any other manner than by their Attorney, 1 Bulstr. 119. Lord Norris's Case.

Hill. 36 El. Carter and Cromwel, in Ejectione Firme, the Plaintiff counts per Lease made by the Warden of All-souls Colledge in Oxon. And Exception was taken, because the name of Baptism of the Warden was omitted, but adjudged there need not; the difference is where a Corporation is sole Person, as Bi∣shop there may be his Name, aliter aggregate. Dyer 86. Marg.

Ejectment was brought on a Demise of a Corporation, not saying by Deed, per Cur' Judgment shall not be arrested for this on Judgment by cognovit Actionem at the Assi∣ses, but it shall be intended after this as well as after a Verdict.

Upon a Lease by Commissioners of Bankrupt.

Commissioners of Bankrupt had assigned the Land in Question to the Lessor of the Plaintiff, which Indenture was afterwards inrolled, but the Declaration was of a De∣mise made after the Indenture and before the Inrolment; and whether that Demise were sufficient to intitle the Lessor of the Plaintiff, was the Question in Perry and Bowe's Case; Per Cur' it is not sufficient. Vi∣de le case, 2 Ventr. 360. Perry and Bower.

By Copyholder.

If a Lease be found made by a Guardian or Copyholder, such a Lease will maintain the Declaration, tho' their Leases are void against the Lord and Infant, Hardr. 330. Wheeler's Case.

Vide supra Tit. Who shall have Ejectione Fir∣me.

By Administrator.

He ought to shew how the Archbishop granted it, either as Ordinary, or by his Prerogative; and therefore Exception was taken to a Declaration in Ejectment, because the Plaintiff conveyed his Interest by an Ad∣ministrator of all the Goods of the Lessee in Sussex and Kent, but shews not how the Archbishop granted it, either as Ordinary, or by his Prerogative;* 1.168 and this was held by the Court to be a material Exception. But

because all the Presidents in B. R. and B. C. were so in general, without shewing how, and because they would not change Presi∣dents, they disallowed the Exception, Cro. El. p. 6. Dorrel and Collins.

In Gillam and Lovelace's Case, it was mo∣ved in Arrest of Judgment, That the Decla∣ration (brought by Administratrix) was not good; because the granting forth Let∣ters of Administration was in this manner (viz.) Administratio commissa fuit querenti per William Lewin vicarium generalem in spiritu∣alibus Episc. Rot. without averring, that at the time of the granting Letters of Admini∣stration,* 1.169 the Bishop was in remotis agendis, for a Bishop present in England, cannot have Vicarium; but per Cur' the Vicar-General in spiritualibus amounts to a Chancellor; for in the Truth, a Chancellor is Vicar-General to the Bishop. 2. The Declaration is not Epis∣cop. Roff. loci illius ordinarii, but per Cur. all the Presidents are so, and in a Declaration such Allegation needs not, but by way of Barr it is necessary. 3. The Plaintiff de∣clares of Ejectment, and also quod bona & catalla ibid. invent. cepit; and in the Verdict the Damages for the Ejectment and Goods are entirely taxed Quaere de hoc. 1 Leon. p. 312. Gilham and Lovelace,

Ejectione Firme was brought of a Lease of Tythes, and shews not that it was by Deed, and ruled to be ill, because Tythes cannot pass without Deed, Cr. Jac. 613. Swadling and Peers.

CHAP. VII.

Where in the Declaration a Life must be aver∣red, and where it need not. Of Delivery of Declarations at or after the Essoyne-day. De∣clurations when to be entred, as of the same Term where the Copies need not be paid for. Declarations, when amendable or not. Of ex∣pressing the Vills where the Lands lie. Of the Pernomen. Declaration need not be of more Acres than he was ejected out of. Of the Forms of the Declaration, Vi & Armis omitted, Extr. tenet omitted. The President of De∣clarations in C. B. in B. R. in Scacario. The Indorsement on the Copy to be left with the Tenant, and what the Tenant is to do thereupon. The Rule for confessing Lease, Entry and Ouster in B. C. and in B. R.

IF one do declare upon a Lease in Ejecti∣one Firme, and that by Virtue of that Lease he was in possession of the Lands there∣by let to him until that he was ejected by the Defendant, it is supposed that the Les∣sor who made the Lease to him, was alive at the time of the Action brought, Pract. Reg. 110.

The Plaintiff in Ejectment declared of a Lease for three years, if the Wife of the Plaintiff shall so long live, and does not shew that the Wife is yet in Life; yet per Cur' this being after a Verdict, is made good by the Stat. 21 Jac. of Amendments after Exami∣nation by the Sheriff. And in Arundel's

Case, in Ejectment the Plaintiff declares that the Lady Morley being only Tenant for life, made a Lease to him for three years, if she should so long live; virtute cujus intravit & fuit possessionat' until the Defendant entred upon him, & illum à firma sua praedicta ter∣mino suo nondum finito extratenet, &c. and he did not averr the Life of the Lady Morley. But per Cur' this amounts to an Averment; for he saith his Term is not yet ended, which implies she is alive, and the years not ex∣pired; and this was after a Verdict. But had it been demurred to, it had been more am∣biguous. So Dyer 304. in Ejectione Firme on a Lease, his Supposition that the person ad∣huc seisitus existit, implies his Life, Siderf. p. 61. Palmer Rep. 267, 268. Arundel and Mead. Cro. Jac. mesme case. 2 Browl. 165.

It was the Opinion of the Court in Cro. El. p. 18. Higgins and Grant's Case, That if in Ejectment one declares of a Lease by a Par∣son, he ought to averr his Life; for by his death his Lease is void, but it's now other∣wise, 2 Bulstr. 79. Cr. El. 18. Higgins and Grant.

Of the Delivery of Declarations, Filing and Entry.

The Court,* 1.170 in Car. 2. Snow and Cooley's Case, upon Motion, ordered, That a new Declaration delivered on the Essoyn-day, should be sufficient (the old one being de∣livered before) the Lessee dying, and the Name was changed, there being sufficient

Notice; and this being the Act of God, shall not prejudice, 1 Keb. 755.

If the Declaration in Ejectment be deliver∣ed after the Essoyn-day,* 1.171 it is but entred of that Term (and not of the Term before) and the Plaintiff in such case cannot have Judgment the same Term; but if he doth not move the following Term to have Judg∣ment (especially if any Assises intervene) he cannot have it without new notice left at the House of the Defendant, and the Default made at first, 1 Keb. 721.

If the Declaration in Ejectment be of Michaelmas-Term,* 1.172 which relates to the first day of the Term, yet it's a matter of Evi∣dence, and examinable what day the Bill was filed, and if it was after the day of the Lease, all is well. On a special Verdict it was moved for the Defendant, That the Declaration was in Michaelmas-Term, 2 Jac. 2. and the Demise is laid to be the 30th of October, 2 Jac. 2. and so after the Term began. Note, the Declaration cited an Original, and an Original was produced, Teste 2. Nov. which was after the Demise; and the Prothonotaries informed the Court, That this was frequently allowed, and that no Memorandums of the Originals bearing Teste within the Term, was used to be made upon the Record, Sid. p. 432. Prodger's Case. 2 Ventr. Tonstale and Broad.

It is the Course of the Court in Ejectment, if the* 1.173 Owner of the Land comes in and prays to be Defendant, the Declaration shall be entred as of this Term, altho' it were of the last Term, against the casual Ejector; but yet

being by favour of the Court admitted, he shall have no new Imparlance besides that which the casual Ejector had. And by Hide there is difference between the Tenant in Possession, who is Defendant ex debito on his Prayer, contra of J. S. who is only concerned in Title, 1 Keb. 706. Roch and Plumpton.

If the Declaration filed be paid for,* 1.174 they need not pay for the Copies, and so a Trial at Bar shall not be hindred for want of pay∣ment of the Copies, 2 Keb. 805.

I find a Rule of Court to change the year, thus:

ss. Mich. 13 Car. Ordinat est per Cu∣riam nono die Octob qd quer' narra∣tionem suam in intratione inter par∣tes de Termino St. Trin ult in∣txat in Anno dimissionis emendavit Et ubi per misprisionem Clerici al∣legavit dimissionem fieri duodecimo die Aprilis Anno undecimo Caro∣li fieri debuit Anno duodeeimo & quer' solveret Def. miss per Magi∣str•• Gulston taxand pro emendatio∣ne illa ex motione Magistri Boon.

Lessee for three years makes a Lease for five years in Ejectment to try the Title,* 1.175 and the Jury on special Verdict doubt whether the Defendant be guilty for 3 or 5 years; Per Cur' the Declaration is ill, and the Plain∣tiff can have no Judgment; Per Hale the Lease is good only for three years,* 1.176 and the Defendant shall be guilty for no more, else the Plaintiff would recover Terminum praedict',

which is five years, but no Judgment can be for three years, being not warranted by the Declaration, Tr. 27 Car. 2. B. R. Rowe and Williamson.

Mr. Levett's Case of the Inner-Temple.

• Sir Roger Puleston, Kt. Plaintiff.
• Sir Peter Warburton and others, De∣fendants.

Ejectment upon the Demise of John Levet and his Wife, wherein the Plaintiff declares that John Levett and Margaret his Wife, the 10th of April 1697. demised to the Plaintiff Habend. from the 25th day of March then last past for five years.

THIS was tried at the Bar,* 1.177 and a Verdict for the Plaintiff; and the De∣fendants have moved in Arrest of Judgment,* 1.178 for that the Demise is laid the 10th of Apr. 1697. which is not yet come, whereas it should be 1696. which the Plaintiff hath moved to amend, and the same ought to be amended, &c. for these Reasons, wherein I shall only ap∣ply my self to the Statute of the 16 and 17 of King Charles the Second Cap. 8. which I hum∣bly conceive hath not been sufficiently spoken to in this matter, which saith, That no Judgments shall be staid or reversed after Verdict for any Mistake in the Christian Name, Day, Month or Year, by the Clerk, where the right Name, Sirname, Day,

Month or Year in any Writ, Roll, Plaint or Record preceeding, or in the same Roll or Record are once rightly named, but that all such Omissions, Variations, De∣fects, and all other matters of the like nature, being not against the right of the matter of Suit, nor whereby the Issue or Trial are altered, shall be amended by the Records.

That we are within the Benefit of this Statute, I shall offer this to your Lord∣ship.

The Declaration against the casual Ejector delivered to the Tenants in the Country was right, that expressing the Demise to be the 10th of April 1696. which ought to have been the time mentioned in this Declarati∣on, for all the mistake was only betwixt septimo & sexto; and there is an Imparlance entred on the Roll in Easter-Term last a∣gainst the casual Ejector, which is right.

As in all Actions brought by Bill, the usual Method of proceeding, is to file the Bill or Declaration in the Office; and as all Defects on the Roll are amendable by that, so this being brought by Original instead of Filing a Bill in the Office, an Imparlance is entred on the Roll, and the Method of proceeding is in the same manner, as in the Common Pleas, the Issue is as much amend∣able by the Imparlance-Roll as it would have been by the Bill, if the Action had been brought by Bill.

The Objection made to this,* 1.179 is, That tho' Tenants in Possession being not all du∣ly served in the Country, the Tenants a∣gree to appear so as the Plaintiff would

consent to try it at the Bar, and that there∣upon there was a new Declaration deliver∣ed, which had this Mistake, and seems to inferr, that the former Declaration was waved, and this was altogether a new Pro∣ceeding, wherein the Court was misinform∣ed; for there was no new Declaration de∣livered, and that which the Defendants pro∣duced, was a Copy of the Issue only, and proved nothing but that there was a Mi∣stake, which appears by the Roll, and is admitted by the Plaintiff, otherwise we need not this motion.

Now, my Lord, that the Defendants Ap∣pearance was to the Declaration delivered in the Country, is plain, for there was no other Declaration delivered, nor was there∣in any other for them to appeal to; be∣sides, it appears by the Rule wherein it is written Pulestone and Goodluck, and under that the now Defendants shall be made Defendants in the room of Goodluck, and shall confess Lease, Entry and Ouster for the Lands in that Declaration mentioned, and shall receive a Declaration, and plead the General Issue, and insist upon the Title only; and that if the Plaintiff shall become Nonsuit for default of the Defendants con∣fessing Lease, Entry and Ouster, then that Judgment shall be entred against the Defen∣dant Goodluck, &c.

Now, my Lord, I would know what De∣claration the Defendants were to appear to; it must be a Declaration against Goodluck; and what Lease the Defendants were to con∣fess; it must be the Lease mentioned in

the Declaration against Goodluck; and what Judgment the Plaintiffs were to have, if the Defendants did not confess Lease, Entry and Ouster; it must likewise be upon the Declaration against Goodluck.

Now, my Lord, if the Defendants will shew a Declaration that was delivered them against Goodluck, wherein there was this Mi∣stake, it would be hard upon us; but if they cannot, then the Declaration delivered a∣gainst Goodluck is right, and the demise they are obliged to confess, is the demise in that Declaration, and only mistaken by the Clerk's transcribing it.

Now, My Lord, if the Defendants have confessed a good and right demise, and this hath been tried, then it would be the great∣est hardship in the World, if the Court should not let the Plaintiff have the Benefit thereof; and it is plain that the Demise the Defendants are by Rule to confess, is the Demise in the Declaration against Goodluck. So that, My Lord, if there were no Statute to help it, 〈◊〉〈◊〉 take it with Submission, the Court having tried the Fact, ought to make the Record according to the Fact they have tryed.

As to their consenting to appear for se∣veral of the Tenants that were not duly ser∣ved, on Condition the Plaintiff would try it at Bar; My Lord, that is an Argument against them, and brings us within the Be∣nefit of the Case betwixt Crawley and Parr, where there was a Judgment in Ejectment by Confession, and the Demise laid after the Judgment, and amended after a Writ

of Error brought, because it was a Judg∣ment by Warrant of Attorney; for it should not be supposed that the Defendant gave a Warrant of Attorney to confess a void Judg∣ment.

Now, My Lord, the Defendants consent∣ing to appear, shall never be intended to a void Declaration, but to a good Declaration in order to a fair Trial. And, My Lord, we are the more intitled to the Benefit of it, be∣cause we are Purchasors, for we give a Con∣sideration for it, viz. agreed to try it at Bar, and they themselves opened it so.

As to what was objected, That when the Tenants have appeared to this Declaration in Ejectment, and are made Defendants, it is a new Action, and that the Declaration against the Casual Ejector is rejected, and that therefore this defect cannot be amend∣ed, though right in the Declaration against the casual Ejector:

I give this Answer, that the Declaration against this casual Ejector, is not rejected, but is by the common Rule in Ejectment made part of the Cause, insomuch that if the Plaintiff be nonsuited he shall have his Judgment upon that Declaration, and the Return of the Postea is Warrant for that Judgment; so that by the common Rule in Ejectment they are so tied together, that it is all but one Action, and the now De∣fendants are to stand in the casual Ejector's place. But, My Lord, the Words of the Statute are not so strict which are in any Proceedings precedenti Now, My Lord, the Declaration in Ejectment is a Proceed∣ing,

and it is precedent, and it is within the equitable meaning of the Statute, which in∣tends all Amendments that are by neglect of the Clerk if it appears that they are right in any of the Proceedings, and for that end a Philiser's Note, tho' no part of the Record hath been sufficient to amend by.

And, My Lord, the same may be said when the Defendant is arrested by a Lat. de Placito transgr', and the Plaintiff declares in Debt or Case, and mistakes the Christian Name Sirname, whether shall it be amended by the Lat. and whether the Lat. shall be look∣ed upon to be a Proceeding precedent to the Declaration, because in another Action, and so it would be if a Man be arrested de Pla∣cito transgr', ac etiam Bill', and the Plaintiff declares in Debt only, this is likewise de∣parting from the Writ; but these are war∣ranted by the Practice and Course of the Court, these Processes being made use of only to force an Appearance; and the Plain∣tiff may then declare in Case of Trespass or Debt, as he sees good. Now My Lord, De∣clarations in Ejectment are the same thing, because only made use of to force an Ap∣pearance, and are by the common Rule in Ejectment become no more part of the same Action, than a Lat. is. But this, My Lord, we have a full Answer to; for the Declara∣tion against the now Defendant, is entred on the Roll, and is right.

But with Submission, My Lord, the De∣claration is sufficient to warrant its own Amendment, it being by Original, viz. Que Johan' Levett & Maria eidem Rogero

demiser' ad terminum qui nondum praeteriit, intraver' & ipsum à firma sua praedicta eje∣cer'. Now, My Lord, the Count may be amended by the Original, which is, that the Plaintiff's Lessors had before that time demised the Premisses to the Plaintiff for a Term not then past; and if the Count be made of a Demise then in being, it is all the Amendment we desire. But, My Lord, here it may be objected, When must that Demise bear date and commence? Must the Court set a Date and Commencement to Plaintiff's Demise?

To which I answer, That the Com∣mencement is certain by the Declaration, videlicet, from the 25th of March last, and that must be the 25th day of March last before the Term the Issue is entred on, which is from 96. and then the Date of the Demise must be betwixt Trinity Term, 96. and the 25th of March before, which points directly at the Mistake which is in Michael∣mass. If the 10th of Aril 1697. instead of 1696. and where the Court can by the Re∣cord 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 ma∣ny 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 De∣claration against the casual Ejector being

right, proves this the Fault of the Clerk in transcribing this wrong, though the Decla∣ration 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 At∣torney 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 ge∣neral 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 Re∣striction hath no relation to the particular defects that were mentioned before, where∣of ours is one, but to the general words on∣ly; 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 a∣mend, is not matter of Substance, yet ought to be amended to avoid Absurdity.

I must confess, that if this had been a De∣mise 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 be∣fore Trinity Term 1696. the Plaintiff's Les∣sors 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 ex∣ecution, 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 be∣ing 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 a∣mended after Verdict.

Lees and Sir Nathaniel Curson,* 1.180 Bar. in E∣jectment, wherein the Plaintiff's Lessor be∣ing 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 se∣curity, the Judge referred the matter to the Court of Common Pleas, who amended it, though never right in any of the Pro∣ceedings.

The Bishop of Worcester's Case in this Court,* 1.181 where there were five Defendants and but three of them pleaded, and after Ver∣dict amended, and the Verdict was record∣ed against two, that no Issue was jonyed a∣gainst in the Record of Ni. pr.

Camberlain against the Hundred of Tun∣dring upon the Statute of Hue and Cry,* 1.182 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 A∣mending, 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 de∣nied; 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 Consi∣deration under a Title of above Sixty years Possession. And having now upon a fair Trial, and a full Evidence obtained a Ver∣dict, 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 Executi∣ons, one for his Costs, and the other for his Possession. Now if there be cause to stay the Possession, there is more cause to stay

Judgment as to Damages and Costs, because the Issue hath been fairly tried, and the Defendants have confessed that the Plaintiff was in Possession, and that the Defendants did eject him; now if his Term was not commenced, but his Possession tortious, yet he is not to be turned out by a Stranger that hath no Title, as the Defendants were, the Jury having found against them, and the Damages are for the entring upon our Possession and ejecting us.

But the Court said, It could not be a∣mended, and Mr. Levet brought a new Trial and recovered.

Declarations when amendable or not.

In Ejectment where the Title is material,* 1.183 the Plaintiff amended his Declaration after Plea (but while all was in Paper) in the date of his Action, without Costs paying, 1 Keb. 14.

After Verdict and Judgment the Decla∣ration cannot be amended,* 1.184 for that might attaint the Jury: As in Ejectment of the Re∣ctory of H. and other Tenants, virtute cu∣jus intravit in tenementa praedicta. Verdict and Judgment de Rectoria & Tenementis praedict',* 1.185 it cannot be amended; but on such Omission in Judgment or Acts of the Court it were amendable, but not of the Declaration. But in this case the Court conceived it well e∣nough,* 1.186 and that the word Tenements includes

Rectory, whether there be Glebe or not, but not so of a Mannor, Hill. 25 and 26 Car. 2. Bale's Case.

If the Plaintiff in Ejectment declare of an House lying in two Parishes,* 1.187 if the House do lie in either of the Parishes, and do not lie in both of them, yet the Declaration is good; for there is certainty enough in it, Pract. Reg. 110.

It must be alledged in what Vill the Te∣nements are;* 1.188 the Plaintiff declares that P. C. by Indenture apud F. let unto him one House and twenty Acres of Land by the Name of all her Tenements in S. per Cur' the Declaration is not good, because it is not alledged in what Vill the Tenements are; for the naming of the Vill in the Pernomen, was not material, and so Cr. El. 822. Gray and Chapman.

The Plaintiff declares of a Lease of one Messuage ten Acres of Land,* 1.189 twenty Acres of Meadow, twenty of Pasture by the name of one Messuage, ten Acres Prat. be it more or less; after Verdict a Nil cap. per Billam was entred: For upon the matter by the Plaintiff disclosed in his own Declaration he cannot have Execution of the Quantity found by the Jury: for in the Lease there is not but ten Acres demised, and these words in Judgment of Law, cannot be extended to thirty or forty Acres, and the rather because the Land demanded by the Declaration, is of another nature than that mentioned in the Pernomen; for this goes only to the Mea∣dow, and the Declaration is to the arable and Pasture, Yelv. p. 166.

In this Action it was moved in Arrest of Judgment, That the Plaintiff had declared of two Demises, (viz.) that J. S. demised ten Acres of Land to him, and that J. N. had demised ten other Acres of Land to him Habend. for the Term of five Years, &c. and that he entred into the Premisses demi∣sed to him by J. S. and J. N. in forma prae∣dicta. After Verdict upon Not guilty for the Plaintiff, it was objected, That in one of the Demises there is no certain Term or Estate; for the Habend' can only be referred to the Demise of J. S. for that begins a new Sentence; but per Cur' the Habend' shall be a good Limitation of both Demises for five Years, and when it is shewed that the Plain∣tiff entred into the Premisses demised to him in forma praedicta,* 1.190 that is an Averment that all was demised to him, for that it is forma praedicta, 2 Ventr. 2. W. and M.

In Ejectment the Plaintiff need not count of the demise of more Acres than the A∣cres out of which he was ejected;* 1.191 and a demise may be pleaded of any Parcel with∣out mentioning the entire; as if one demise to me two Acres for Term of Years, and I am ejected out of one Acre by a Stranger, Now I shall have Ejectione Firme, and count that one Acre was demised to me, without any mention of the other Acre, 1 Saunders p. 208.

Where one declares on a fictitious Lease to A.* 1.192 for three years, and within the same Term declares of another fictitious Lease to B. of the same Lands, the last is not good; for Trespass for the mean Profits must be

brought in the first Lessee's Name, ut di∣citur.

As to the Form.

Ejectment was against two,* 1.193 and the Decla∣ration was intraverat & expulit; and it was amended, Yelv. 223.

Vi & armis are left out in the Declaration,* 1.194 Cro. El. 340. Griffith and Williams's Case, saith it is but matter of Form, and it is helped after a Verdict; but in Cro. Jac. 36. and Yelv. 223. in Odington and Darby's Case, where vi & armis was left out, and Error was brought in the Exchequer-Chamber, it was not suffered to be amended, but Judg∣ment was reversed. So Godb. 286. and so in Sykes and Coke's Case the Want of vi & armis is not helped by a Verdict; but in Er∣ror in B. R. if upon diminution it be well certified, the Court will amend it, Godb. 286. 2 Bulstr. 35. Cr. Jac. 306. Yelv. 223. Odington and Darby. 1 Keb. 164.

In B. R. the Transcript of Trespass and Ejectment was de Placito Transgressionis & Ejectionis, omitting Firme, it was amended. And in B. R. it would be amended in the Record it self before Removal, 1 Keb. 106.

Exception was taken in Godb.* 1.195 60, 71. be∣cause the Plaintiff did not say in his Decla∣ration Extratenet; but per tot' Cur' those Words were not material; for if the Defen∣dant do put out the Plaintiff, it is sufficient to maintain the Action. So if it be à possessione sua ejecit instead of à firma sua ejecit, it's good; for ejecit à possessione inde, inde hath relation to the Farm, Godb. 60, 71.

In Ejectione Firme the Writ and Declara∣tion were of two parts of certain Lands in H. and saith not, in two parts in three parts to be divided, and yet it was good as well in the Declaration as the Writ; and this difference was taken Per Cur' By intend∣ment and Construction of Law,* 1.196 when any parts are demanded without shewing in how many parts the whole is divided, that there remains but one part not divided; as if two parts are demanded, there remains a third part; and when three parts are divided, there remains a fourth part: But if any de∣mand be of other parts in other Form, there he ought to shew the same specially, as if one demands three parts of five parts, or four parts of six, &c. 13 Rep. 58.

Declaration in Ejectment is Quod cum such an one dimisit,* 1.197 it's good here, be∣cause he cannot have the Action without a Lease; but in Trespass, as Assault and Bat∣tery, &c. it is not so. And Dodderidge took this difference, Where the thing on which the Action is brought, hath continuance, and where the Action is brought for a thing done and past. In Ejectione Firme there the Lease hath still Continuance, and there such a Declaration with a Quod cum, is good, because it is in the Affirmative; but where the thing is past, as Battery, it ought not to be with a Quod cum, 2 Bulstr. 214. Sher∣land's Case.

As for the manner of declaring in respect of the thing demised, vid. supra titulo, Of what things an Ejectment lies: To which I shall add one Case in the Exchequer. Eject∣ment

for so many Acres of Meadow, and so many Acres of Pasture, on Non culp' the Ju∣ry find a Demise de Herbagio & Pannagio of so many Acres.* 1.198 Per Cur' by the same Reason that an Ejectment lies of a Lease of Her∣bage, by the same Reason the Plaintiff ought to declare accordingly; and Herbage does not include all the Profits of the Soil,* 1.199 but only part of it, Hardr. 330. Wheeler's Case in Scacario.

The Form of a Declaration from a Par∣son of Rectory and Tenements in B. R. with an Averment of the Parson's Life, 1 Rep. 149. Chedington's Case.

The Form of a Declaration in Ejectment in the Common Pleas. Mich. 16 Car. 2.

Tempest.

Midd ss. A. B. nuper de London Gen attachiat fuit ad respon∣dend W. I. de plito quare vi & armis unum Messuagium unum Gardinum de∣cem acras terre tres acras prati & qua∣tuor acras pasture cum pertinentiis in H. que S. W. vid eidem W. dimisit ad terminum qui noudum preteriit intravit & ipsum a firma sua predict ejecic & alia enormia ei intulit ad grave damuum ipsius W. & contra pacem Dom Regis

nunc, &c. Et unde idem W. p I. S. At∣tornat suum queritur qd cum predict S. primo die Octobris Anno Regni Dom Regis nunc quinto decimo apud H. predict dimisit prefat W. Tenementa predicta cum pertin habend eid W. & assignat luis a Festo Sancti Michaelis Archangeli tunc ultimo preterito us{que} fi∣nem & terminum quin{que} annorum extunc {pro}xime sequen & plenarie complend & fi∣niend virtute cujus dimissionis idem W. in Tenementa predicta intravit & fuit inde possessionat Et sic inde possessionat existen predict A. postea scilicet eod primo die Octobris Anno Regni dict Dom Re∣gis quinto decimo supradicto vi & armis, &c. in Tenementa p̄dicta cum pertin que p̄dict S. p̄fat W. in forma p̄dicta dimisit ad terminum p̄rict qui nondum preteriit intravit & ipsum a firma sua p̄dicta ejecit ac alia enormia, &c. ad gra∣ve damnum, &c. & contra pacem, &c. On. de dicit quod deteriorat est & damnum het ad valentiam decem Librarum & inde {pro}duc Sectam.

Et p̄dict A. p G. I. Attornat suum ven & defend vim & injuriam quand{que}, &c. I. Lo. us{que} Octab Hillarij.

In the King's Bench.

TH. queritur de Iacobo W.* 1.200 in custod Marr Marese Dom Regis coram ipso Rege existen {pro} eo videst quod cum H. M. Gen ultimo die Ianuarij Anno Regni Dom nostri Caroli secundi nunc Regis Anglie, &c. vicesimo, apud B. in Com predict dimi∣sisset concessisset & ad firmam tradidisset p̄fato T. unum Messuagium & duas A∣••ras Pasture cum pertiu scituat jacen & existen in B. p̄dice habend & tenend renementa p̄dicta cum pertin prefato T. & assignat luis a vicesimo quinto die Decembris tunc ult p̄teris us{que} plenum finem & terminum quin{que} annorum extunc {pro}xime sequen & plen••r̄ & finiend complend virtute cujus quidem dimissionis idem T. in tenementa p̄dicta cum p̄tin intravit & fuit inde possessionat quous{que} p̄dict Iaco∣bus postea scilt eodem ultimo die Ianu∣arij anno Regni dict Dom Regis nunc vicesimo supradict vi & armis, &c. in te∣nementa p̄dicta cum pertinen in & super possessionem ipsius T. inde intravit & ip∣sum T. a possessione sua predict termino suo p̄dict inde nondum finit ejecit expulit & amovit ipsum{que} T. a possessione sua p̄dict extratenuit & adhuc extratenet & alia enormia ei intulit contra pacem dict Dom Regis nunc ad damnum ipsius T. 20 l. Et inde {pro}due Sectam, &c.

In the Office of Pleas in the Exchequer.

A. B.* 1.201 debitor Dom Regis nunc venit coram Ba∣ronibus hujus Scacarij duodecimo die Februarij hoc Termino p C. D. At∣torn suum & queritur p Billam versus E. F. p̄sent hic in Curia eodem die de plito Transgressionis & Ejectionis Firme pro eo videlt qd cum quidam I. B. secundo die Feb Anno Regni dict Don̄i Regis nunc vicesimo primo apud, &c. ({pro}ut supra in B. R.) ad vamnum ipsius A. decem Librarum Quo minus, &c. Et inde pro∣ducit Sectam, &c.

A Copy of the Declaration you must leave with the Occupier of the House and Land, with this or the like Indorsement.

JAmes B. yon may perceive that I am sued for the Messuage and Lands within mentioned, being in your Possession; these are therefore to desire you to defend your Title, or else I shall suffer Judgment to be entred by default.

Or thus.

UNless the Tenant in Possession, or they under whom he claims, do next Tri∣nity Term appear to this Declaration, and make him or themselves Defendants there∣unto, and by Rule of Court confess the Lease,

Entry and Ejectment, and insist only upon the Title at the Trial, the Defendant in this Declaration will confess Judgment, and Possession will be delivered accordingly to the Plaintiff, and you turned out of Posses∣sion.

Your Friend J. D.

To A. B. Tenant in Possession of the Premisses within mentioned.

To this the Tenant may appear by his Attorney, and consent to a Rule with the Plaintiff's Attorney, to make himself De∣fendant in the room of the casual Ejector, and to confess Lease, Entry and Ouster, and at the Trial to stand upon the Title only; or in default thereof Judgment will be en∣tred against the casual Ejector.

If the Tenant in Possession do not appear in due time, and enter into a Rule, as is aforesaid, then upon Affidavit made of the Service thereof, and notice given him to ap∣pear, the Court upon Motion will order Judgment to be entred against the casual Ejector; for if the Defendant plead nothing to this Action,* 3.1 but let it pass by Nihil dicit, the Judgment cannot be had upon a com∣mon Rule, as in Actions of Debt, and such like, but by Motion of the Court, because it is to alter Possession.

After the Declaration delivered,* 3.2 the Per∣son whose Interest is concerned, ought to retain an Attorney, who is to give his

Client's Name to the Plaintiff's Attorney, that so he may be made Defendant instead of the casual Ejector; and then a Rule is to be entred by Consent, as follows:

Robinson. Pas. 15 Car. 2. Regis.

D. versus M. in Ejectione Firme de terris & tenementis in H. in Com' M. ex dimissio∣ne E. P.

ORdinat est p Curiam ex assensu I. H. Attornat quer̄ & I. R. Attornat {pro} T. W. de W. in Com E. p̄dict Yeom quod idem T. admittatur defendens qui indilate comparebit p Attorn suum p̄∣dict & recipiet narrationem & plitabit ad∣inde generalem exitum hoc Termino & ad Triac̄onem superinde habend idem T. comparebit in {pro}pria persona sua aut p ejus Concilium vel Attornat Et cogno∣scet dimissionem intrationem & actualem expulsionem vel quod in defectu inde in∣tretur judicium versus Def. G. M. ca∣sualem Ejectorem sed parcatur ulterior prosecutio versus cum quous{que} p̄dict T. in aliquo p̄missorum defalt fccerit Et ex consimili assensu ulterius ordinat est per Cur quod p̄dict T. nullum capiet ad∣vantagium versus querent {pro} ejus non {pro}secutione super Triatione occasionat p hujusmodi defaltam sed quod p̄dict T. solvet querenti custagia Prothonotar̄ {pro} inde taxand Et ulterius ordinat est quod dimissor querentis sit onerabilis cum so∣lutione

custagiorum defendent per Cur aliquo modo taxand vel adjudicand.

The like in B. R.

Die Lune prox' post Crast' Ascensionis Domini, 23 Car. 2. Regis.

ORdinatum est ex assensu ambarum partium & eorum Attornat qd W. H. qui clamat titulum Messuagio in questione fiat Def. & compebit inldiate ad Sect quer̄ & impon commune Bal∣lium & recipiet narrationem in plito Transgressionis & Ejectionis Firme & plitabit adinde non culp▪ & super triati∣one exitus cogn dimission intration & actualem Ejectionem & stabit super titu∣lum tantum alit judicium intretur per defalt̄ versus modo querent Et si pdict W. H. super triatione exitus illius non cognose dimission intrac̄on & actual eject' p qd quer {pro}sequi ulterius non potest quod tunc nu•• mis̄ sive custaḡ super tali non pros̄ adjudicentur Et ulterius ordinat est qd si veredict redditum fuerit p̄dict W. H. vel predict quet non pros̄ foret {pro}pter aliquam aliam causam {pro} qm non cognost dimission intrac̄on & actualem e∣jectionem p̄dicy quod tunc le Aessor quet solveret talia custaḡ W. H. Def. qualia p Cut adjudicata fuerint p Cur̄'.

An Affidavit in Ejectment to move for Judg∣ment against the casual Ejector.

Inter A. S. Quer' & B. C. Def. 'de Terris & Tenementis in R. in Com' H. ex di∣missione J. H.

T. S. maketh Oath, That he this De∣ponent on Thursday the—day of —last past did deliver unto J. D. Te∣nant in Possession of the Premisses in que∣stion, a true Copy of the annexed Declara∣tion, with an Indorsement or Superscription thereupon, to this effect, viz. J. D. You may perceive by this Declaration, that I am sued as Casual Ejector for the Land, and Tene∣ments within specified, in your Possession (where∣unto I claim no Title) I do therefore hereby give you timely Notice, that unless you appear and defend your Title this next—Term, I shall suffer Judgment to pass against me by Default, whereby you will be turned out of Possession. Your Loving Friend, C. R. Dec. 12. 1679. Which said Indorsement or Superscri∣ption this Deponent did then read to the said T. D. and acquainted him with the Con∣tents thereof.

Note,. It is good Service to deliver the Copy to the Wife, or to the menial Servant of the Tenant in Possession. If to the Wife, thus (viz.) I did deliver to Ann the Wife; or, if to the Servant, to R. W. the hired Servant of J. D. and desired her to acquaint

her Husband therewith; or him his Master there∣with.

If there be two Tenants, then say, I did deliver one Copy of the annexed Declaration to A. R. Tenant in Possession of Parcel of the Premisses in question; and another Copy there∣of to C. D. Tenant in Possession of the Re∣sidue of the Premisses in question; upon which said several Copies was subscribed or indorsed to this effect, &c. Which said several In∣dorsements he the said Deponent did read to the said several Tenants, &c.

CHAP. VIII.

Of Pleadings in Ejectment. What shall be a good Plea in Abatement in this Action. En∣try of the Plaintiff haenging the Writ. Entry after Verdict, and before the day in Bank. After Imparlance no Pleading in Abatement, and why. Abate, because he 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 Five Ports to be made. Ancient Demesne a good Plea in Ejectment, 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 Assises is reasonable; the Consequence of a Demurrer to this Plea. Release from one of the Plaintiffs in Writ of Error, whom it shall bar. Accord with Satisfaction pleaded in Ejectment. Aid prier, and why the De∣fendant shall not have Aid of the King, ali∣ter of a common Person; But 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.

THE General Issue in Ejectione Firme is now setled by Rule of Court to be Not guilty, tho' formerly the Defendant

might have pleaded Non ejecit, or any other Title; and therefore tho' this Chap. 2. may seem needless, because by the new Practice, upon Not guilty pleaded, the Title is only to be insisted on at the Trial, yet in some Cases special Pleas may and ought to be pleaded in Ejectione Firme, especially in in∣feriour Courts, which I shall first treat of, and then give a little touch as to the special Pleading formerly in use in this Action, that so the Reader may not be totally ignorant thereof. But first,

What shall be a good Plea in Abatement.

Per Cur',* 3.3 It is a good Plea in Abatement of Ejectione Firme in B. R. that the Plaintiff had another Ejectment for the same depend∣ing in the Common Bench, Moor p. 539. Digby and Vernon.

In Ejectione Firme,* 3.4 if the Term be expired before the Action brought, the Writ shall a∣bate, because he ought to recover the Term and Damages; but if he commence the A∣ction before the Term expire, and it expires pendent the Writ, there it shall not abate, but he shall recover Damages, Dyer 226.

Entry of the Plaintiff hanging the Writ,* 3.5 shall abate the Writ.

In Williams and Ashet's Case the Defen∣dant would have pleaded Entry after the Verdict in Abatement of the Writ,* 3.6 but it was hold clearly he had not day to plead it, but it is put to his Audita Querela. But in Parkes and Johnson's Case, in Ejectione Firme the Error assigned was, That the Plain∣tiff

after Verdict, and between the day of Nisi prius, and the day in Banco, had entred, whereby his Bill was abated, and demurred thereupon: Per Cur' this cannot be assigned for Error; for it proves the Bill is abateable, but is not abated in fait; neither is it ma∣terial to assign it for Error; for upon such Surmise which goes only in Abatement, the Judgment shall be examined, Cro. El. 181. Ashet's Case. Cro. El. 767. Parks and John∣son.

The Plaintiff declares of one Messuage and forty Acres of Land in Stone.* 3.7 The De∣fendant imparles till another Term, and then pleads, That within the Parish of Stone are three Vills A. B. and C. and because the Plaintiff does not shew in which of the Vills the Lands lie, he demands Judgment of the Bill, & quod ob causam praedict' Billa praedicta cassetur. The Plaintiff demurs, and adjudg∣ed for him.* 3.8 For, 1. after Imparlance the De∣fendant may not plead in Abatement of the Bill, for he had accepted it to be good by his Entry into defence, and by his Imparlance 2.* 3.9 The matter of the Plea is not good, be∣cause the Defendant does not shew in which of the Vills the Messuage and forty Acres lie. And where a Man pleads in Abatement, he ought to give the Plaintiff a better Writ, and upon Demurrer there shall be a Respon∣deas Ouster, Yelv. 112. Tomson and Collier.

After Verdict for the Plaintiff (the Que∣stion being brought against Baron and Feme) that the Husband was dead since the Nisi* 3.10

prius, and before the day in Bank; and whether the Bill should abate in all, or should stand against the Feme, was the Question; and because it is in Nature of an Action of Trespass, and the Feme is charged for her own Fact, it was adjudged that the Action continued against the Feme, and that Judg∣ment should be entred against her sole, be∣cause the Baron was dead, Cro. Jac. 356. Rigley and Lee.

Ejectione Firme by J. S. against N. and O. N.* 3.11 appears and pleads the General Issue, and Process continues against the other until he appears, and then he appears and pleads an Entry into the Land puis darrein Continuance. Judgment de Brev'. The Plaintiff upon this Plea demurs in Law, Curia advisare; and in the interim the first Issue was found pro Quer' versus N. and the Plaintiff prays his Judg∣ment. He shall not have it, because the Plain∣tiff by Demurrer in Law had confessed the Writ abateable; and the Writ by the Entry of the Plaintiff was abated, in as much as the Term is to be recovered, Dyer 226. Ne∣vill's Case.

To the same purpose is the late Case of Boys and Norcliff.

In Ejectione Firme the Question was, if the Entry into the Land after the day of Nisi prius, and before the day in Bank, may be pleaded in Abatement; and if such Entry puis darrein Continuance, be a Plea in Abate∣ment. Note, this was in Error out of the Common Bench, and held by the Court of the King's Bench, that it is not Error, yet entry will not revive the Term, because▪

it's only in Abatement,* 3.12 and there is a Di∣versity between this and Death, 1 Bulstr. 5. And it's usual if the Entry be before the Nisi prius, to plead such a Plea at the Assises, and if it be omitted, the Advantage is lost; but not so in case of Death: By Death the Writ is actually abated,* 3.13 there being no time to plead it in Court, but Entry must be pleaded puis darrein Continuance in Abate∣ment only, Sid. p. 238. Boys and Norcliff. 1 Keb. 841, 850. mesme Case.

Shall not abate by the Death of the Les∣see.* 3.14 Vid. 3 Keb. 772.

Of pleading to the Jurisdiction: Conisance of Plea, how to be demanded and allowed, and how pleaded.

This Plea was formerly allowed of, and so is still in some Cases.

Now every Plea which goes to the Juris∣diction of the Court,* 3.15 ought to be taken most strong against him that pleads it; and to this purpose there is a pretty Case.

In Ejectment the Plaintiff declares of a Lease made at Haylsham;* 3.16 the Defendant pleads, That Haylsham praedict. ••ubi tenementa jacent, is within the Cinque-Ports where the King's Writ runs not;* 3.17 and so he pleaded to the Jurisdiction of the Court. The Plaintiff reply'd, That the Town of Haylsham was within the County of Sussex, absque hoc, that it was within the Cinque-Ports. The Defen∣dant demurs,* 3.18 because he ought to have tra∣versed absque hoc quod Villa de Haylsham ubi tenementa jacent, is within the Cinque-Port;

for the truth was, it was part in the Cinque-Ports, and part in the County of Sussex, and the Land lies in the part which is in the Cinque-Ports; but per Cur' the Traverse is good, and the Bar is naught. The Defen∣dant in his Bar ought to have made his Di∣stinction, and every Plea which goes to the Jurisdiction of the Court, ought to be ta∣ken 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,* 3.19 that the Lands in the Ejectment were within the Cinque-Ports, which the Court granted, there being no Imparlance General or Spe∣cial, both which affirm the Jurisdiction of the Court; and at the Venire fac' the Plain∣tiff 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,* 3.20 ore te∣nus, shewing his Warrant of Attorney, de∣manded 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,* 3.21 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,* 3.22 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 Impar∣parlance (with a salvis omnibus, &c.) Per Cur' let him plead in Chief; unless in An∣cient Demesne no special Plea has been al∣lowed, because the Lord would be preju∣diced in a Trial at Common Law, 1 Keb. 725. Hale and Uppington.

In Hall and Hugh's Case in Ejectment of Lands,* 3.23 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 Judg∣ment, si Curia cognoscere velit, &c. The Plain∣tiff 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,* 3.24 as well as Not guilty. The Demise in this Case was laid at Maidstone; per Twis∣den this being an inferiour Court, they can∣not try the Demise, which is issuable,* 3.25 and the great Mischief that came in want of Proof of the Demise, was the cause of intro∣ducing 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;* 3.26 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, Whe∣ther Ancient Demesne may be pleaded af∣ter Imparlance.* 3.27 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. Be∣cause 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 Defen∣dant pleads that the Lands were Ancient De∣mesne, 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 An∣cient 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 De∣mesnes 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 ta∣ken 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 perso∣nal in Quality, 2 Rolls Rep. 181. Banister and Eyres.

The Defendant imparles in Ejectione Fir∣me,* 3.28 and after pleads that the Land is An∣cient Demesne, &c. & unde intendit quod Cu∣ria non vuit cognoscere, &c. The Plaintiff de∣murs: Per Cur' this Plea is pleadable after Imparlance, because if Judgment be given here the Lord will rever••e it by Disceit, and the Judgment will be avoidable, and the di∣versity

is true,* 3.29 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;* 3.30 but if he had be∣gun 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, 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 af∣ter Imparlance,* 3.31 1 Keb. 361. Holiday's Case. But in 1 Keb. 706. by Windham the new De∣fendant (one that prays to be made so) may plead Ancient Demesne after the for∣mer Imparlance, because it's not any Ou∣ster of the Court of Jurisdiction. Cur' e con∣tra. He ought to plead Not guilty personal∣ly, Roch and Plumpton's Case. And in 1 Keb. 755.* 3.32 Snow and Cooley. The Court will al∣low 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 An∣cient Demesne to a Declaration delivered before the Essoyn of this Term,* 3.33 as of last Term, which the Court granted, and or∣dered him to attend the Scondary to settle

the said Plea, which is usually done by ma∣king 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 An∣cient Demesne is a good Plea after Impar∣lance; 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:* 3.34 The Declaration makes mention of no Vill in certain. The Defendant pleads a Release puis darrein Con∣tinuance 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 pro∣ceed to take the Inquest, and to this Plea of the Defendant, the Plaintiff cannot there reply, but he ought to reply in Bank. Af∣ter Issue joyned, and a Venire fac' awarded in such a Vill, the Sheriff returns null ti••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 ap∣pears and pleads Entry puis darrein Continu∣ance in Abatement of the Writ: Upon which the Plaintiff demurs; and after Issue was found for the Plaintiff,* 3.35 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 recover∣ed, aliter if he had imparled. Vide supra Plea in Abatement, Dyer 226.

Upon a Special Verdict in Ejectment,* 3.36 and a day given for Argument, before which the Defendant procures a Release of all Eject∣ments, 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 Par∣ker.

Ejectment was brought of Lands in K. and two other Villages.* 3.37 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, be∣cause he declared not in which of the Villa∣ges the Close lay. Per Cur' this Plea is re∣ceivable, for it is matter in fait, and per∣emptory to him who pleads it; for as a Re∣lease

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 De∣claration 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 vene∣rint, and to the Parties day is given there absolutely. 2 Rolls Abr. 630. Moor and Haw∣kins. 1 Rolls Abr. 485. Sir Hugh Brown's Case.

In Ejectione Firme,* 3.38 after pleading Not guilty a Release is pleaded puis darrein Con¦tinuance whereby the first Issue is discharged, which the Court granted. And tho' the Ju∣stices 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.* 3.39 181. 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 Agree∣ment being gained after, 3 Keb. 67. Mich. 24. Car. 2. Carter and Haggard.

Accord and Satisfaction a good Plea in E∣jectment.

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 de transgressione & Ejectione praedict' quam de omnibus aliis querelis debitis & debatis inter eos ante tunc habitis fact', sive propter al', &c. habebatur concordia, that in Satisfaction there∣of the said R. one of the Defendants should pay to the Plaintiff 6 l. 10 s. at the Feast of St. Michael then next ensuing, and that for the true payment of this he shall become bound in an Obligation of 13 l. and pleads performance of this, and the Receipt of the said Sum at the said Feast accordingly. And it was resolved, That Accord in this Action is a good Plea, as being in nature of a Tres∣pass. And tho' the Term (which is a Chat∣tel real) shall be recovered as well as Da∣mages, yet it's a good Plea; and Accord and Satisfaction for one shall discharge all the Trespassors and Ejectors. Vid. this Case

argued, 2 Brownl. 128. 9 Rep. 77. Henry Pey∣toe's Case.

But now the Rule is to stand upon the Title only.

Aid prier; where Aid shall be granted in this Action, and in what Cases not.

The Defendant justified as in his Frankte∣nement the Reversion to the King,* 3.40 and pray∣ed in Aid of the King, per Cur' he shall not have Aid in this Action, which is as a Tres∣pass upon this Plea; for he needs no Aid of the King to maintain this Plea. So in Al∣len and Hallowel's Case, the Defendant pleads, That the Queen was seized in Fee, and let it to J. S. for years by Patent, who let it to the Defendant, and prays in Aid of the Queen; and it was ruled to be no Plea, because he is not immediate Tenant; where∣fore a Respondeas Ouster was awarded. And in Bridgman's Rep. 87. it is agreed, That the Defendant shall not have Aid of the King, because he is not his immediate Tenant, and so no Privity between the King and him. And to the same purpose is Anderson's Case in Hardress's Reports. The Defendant pray∣ed in Aid of the King's Lessee for 99 years for his Dutchy Land in trust for the Queen, as part of her Joynture, and as Bailiff to them; and it was denied by the Court. And upon the General Issue it appears not whe∣ther the Right will come in Question; and yet it's said in the Countess of Kent's Case, 3 Jac. B. R. That in Ejectione Firme the De∣fendant

shall have Aid of the King, because by Intendment the Freehold shall come in Debate in this Action, 1 Rolls Abr. 407, 156. Bennet's Case. Cro. El. p. 374. Allen and Hollowell. Hardr. 179. Anderson and Arun∣del. 1 Rolls Abr. 148.

But Aid lies in Ejectione Firme (of a com∣mon Person) when the Title of the Land is to come in question.* 3.41 And if a Man recover in Ejectione Firme against J. S. who dies, in a Scire factas against his Heir, the Heir shall have Aid of him in whose Title his Ance∣stor claims, 1 Rolls Abr. 161, 162.

In Ejectment the Defendant pleaded Not guilty,* 3.42 and after Issue joyned, the Queen sent a Special Writ to the Court, reciting, that how the Defendant was Tenant in Tail with divers Remainders over, the Re∣version to the Queen, and that her Rever∣sion might be prejudiced by this Trial. Wherefore it was commanded then not to proceed to the Trial of this Issue, Regina in∣consulta. And it was a Question much de∣bated, whether this Writ were allowable or not, because it is a personal Action only. Per Cur' this Writ ought to be allowed (as well as Aid prier) because it appears to them, that the Queen may be prejudiced in her Title; and by the Writ there is a Recital of a Title in the Queen; and her Trial of Right is to be discussed in Chancery,* 3.43 where the Queen's Records are to prove her Title; therefore per Curiam we shall not proceed without a Procedendo. Vid. 1 Anders. 280. Blo∣feild and Harris. Cro. El p. 417. Sale and Bar∣rington. Moor 421. mesme Case. Hardr. 428.

In Trespass for breaking his Close.* 3.44 The Defendant pleads, That before this he had brought Ejectione Firme against the now Plaintiff, and recovered, and had Execution, &c. Judgment si actio. Per Curiam it is a good Bar, and the Conclusion of the Plea is also good. Judgment, si actio, without rely∣ing upon the Estoppel, 1 Leon. p. 313. Kemp∣ton and Cooper.

Ejectione Firme was brought against Drake and five others: Drake pleads Not guilty, the other five quoad 20 Acras plead Not guilty; and as to the Residue that long time before, &c. the Plaintiff in his Replicat' said, He was possessed till by the said five De∣fendants, who pleaded in Bar, he was ejected; and by his Declaration he has supposed him∣self to be ejected by all the six Defendants, and so a Departure from the Declaration in the number of the Ejectors: But Curia contra.* 3.45 For Drake by his several Issue which he has joyned with the Plaintiff upon Not guilty, is severed from the other five Defendants; and then when they plead in Bar, the Plain∣tiff ought to reply to them, without med∣ling with Drake. So in Ejectione Firme of 20 Acres, the Defendant, as to 10 Acres, pleads Not guilty, upon which they are at Issue; and the Plaintiff replies, as to the o∣ther 10 Acres, and so was possest until by the Defendant of the said 10 Acres he was ejected; this is good without speaking of the other 10 Acres, upon which the general Is∣sue is joyned, 2 Leon. p. 199. Holland and Drake.

It was moved for the Defendant,* 3.46 that he might have Liberty to plead specially in an Action of Trespass and Ejectment, and not generally Not guilty, because there had been matter given in evidence at a former Trial, which ought not to have been. By Rolls, if the other will not consent, you shall not plead specially, but proceed according to the Course of the Court, Stiles Rep. 412.

Note, The Defendant by Rule of Court,* 3.47 was not to plead till Costs paid, assessed in a former Action on Nonsuit, and that another Plaintiff might be named, or that Security be given to pay the Costs, if the Plaintiff should be Nonsuit again, Stiles p. 433.

Bar or Recovery in one Ejectione, how far a Bar or Recovery in another.

It was a Question, Whether a Bar in one Ejectione Firme were a Bar in another?* 3.48 And Justice Berkley said, It was adjudged upon this Difference, That a Bar in one Ejectione Firme is a Bar in another for the same Eject∣ment, but not for another and new Eject∣ment.* 3.49 And in Godbolt's Rep. Case 128. in Trespass the Defendant pleaded that at an∣other time before the Trespass, he did re∣cover 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 De∣fendant 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 re∣lying 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 Reco∣very 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, espe∣cially if the party relieth upon the Estoppel; and altho' it be in an Action personal, and in the nature of a Trespass, yet the Judg∣ment 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 Ad∣vice is now laid aside, 4 Leon. 77. Spring and Lawson.

Note, In Ejectione Firme against two De¦fendants, one confesseth the Action, and the other pleads in Bar Non Culp'; per Cur', tho

in Trespass against two,* 3.50 and the one makes Default, and the other confesseth the Acti∣on, 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 trick∣ed, 2 Bulstr. 113.

Expiration of the Term in Ejectione Fir∣me, 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 a∣gainst 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 Chal∣lenge good;* 3.51 and for this Cause the Triers found him not to be indifferent, and so he was withdrawn. Another Juror was chal∣lenged 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 10l. 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 Eli∣sors. Of Venue, Where the Parish and Vill shall be intended all one: Where it shall not be de Corpore Comitatus. Where the Ve∣nire fac' is amendable. Venire fac' to the Coroners, because the Sheriff is Cousin to one of the Defendants. A Venire de Forrest. Ve∣nire de Novo for Baron and Feme.

BY Coke in Guest and Bridgman's Case,* 3.52 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.* 3.53 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,* 3.54 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.* 3.55 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;* 3.56 and it was prayed that that Elisors might return the Ju∣ry, but the Court would not grant it at the Prayer of the Defendant, though the Plain∣tiff 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;* 3.57 but the regular Course is for the Plaintiff to pray it, or else the Defendant may chal∣lenge the Array at the Assises; for it is a prin∣cipal Challenge, that the Lessor of the Plain∣tiff is High-Sheriff, or of Kindred to the She∣riff, Tr. 1657. Hut. 25. Moor 470. Rolls Rep. 320. 15 Car. 2. B. R. Duncomb and Ingle∣by.

In Ejectment the Plaintiff suggesteth, that his Lessor the Sheriff and Coroners were Tenants to a Dean and Chapter,* 3.58 whose In∣terest 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 Array was challeng∣ed,* 3.59 because it was made at the Nomination of the Plaintiff, and by Consent of the Par∣ties, 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 At∣tornies, 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 per∣adventure 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.* 3.60 But now in our seigned Eject∣ments 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 per∣used. Per Hale, Chief Baron,* 3.61 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 De∣nomination 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 Curd∣worth: 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, ali∣ter, 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 prae∣dict. 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,* 3.62 if the Plaintiff de∣clare 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 re∣fers to the Ejectment, which was where the Land lies, 2 Rolls Abr. 619. Pell and Spur∣geon.

The Award upon the Plea-Roll was a∣gainst both Defendants,* 3.63 they both plead Non culp'. The first Process (viz:) the Ha∣beas 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 Er∣ror 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.* 3.64 and Ver∣dict 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 ex∣tended 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 Bre∣don, a Parish called Bredon, and Workington a Vill in the Parish of Bredon, and the Tythes are alledged to be in Workington and Wil∣lesdon (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 Work∣ington and Willesdon are named Hamlets in the Pern••men, yet the Court ought to ad∣judge upon that which is alledged by the Plaintiff in his Count, 11 Rep. 25. 6. Har∣pur's Case.

Ejectione Firme versus B. for ejecting him of certain Lands in Creeting St. Marys, Cree∣ting St. Olaves and in Creeting omnium San∣ctorum; 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 Di∣stringas 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 diffe∣rence between a Mistake in the Name of Baptism and in the Sirname;* 3.65 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 intend∣ed 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 Firme, and it was not amended; for tho' Ejectione Firme is but a Plea of Trespass in its nature, yet the Actions are several, and therefore the Venire fac' ought to be accord∣ingly, Cro. El. 622. Clerk's Case.

Ejectione Firme of a Lease at Mockas in Lower Mockas. The Defendant pleads Not guilty, and found against him, and it was moved to be a Mis-tryal; for the Venire fac' was awarded from Mockas, where it ought to have been from Lower Mockas, the Issue being Not guilty; but if the Lease had been traversed, it had been otherwise, Williams and Whitin.

In Ejectione Firme the Plaintiff declares of a Lease of Land in B. Pernomen of, &c. in B. C. &c. The Venue from B. is good, 2 Rolls Rep. 479. Taylor and Lenn.

The Appearance and Issue were in Hill.* 3.66 1 Jac. and the Bail was Crastino Pur', and thereupon was the Declaration, and Issue, and Venire fac' awarded, bearing date the 23th of January 1 Jacobi, and upon this a Distringas the 12th of February, moved in Ar∣rest, That the Venire fac' was awarded be∣fore the Appearance and Declaration to try the Issue in the same Action, and cannot be

good. Per Cur' it was amendable, for the Roll is the Warrant of the Venire fac', which being variant from it, the Teste thereof shall be amended to be subsequent to the Issue joyned. And whereas the Teste was the 23th of January, which was Sunday, it shall be a∣mended, it being but the Fault of the Clerk, and misawarding of Process, which is aided per Stat. 32 H. 8. and 18 Eliz. Cro. Jac. 64. Dolphin and Clark.

William Brown of Bradfeild was returned upon the Venire fac' and Hab.* 3.67 Corpora, and William Brown of Metfeld, who was another Person and not returned, was sworn; yet this cannot be assigned for Error; for it is against the Record, which is, That William Brown of B. was returned and sworn; and he is estopt to say the contrary, for then every Record may be brought in Question upon such Surmise, Cro. Jac. 244. Bowss and Cannington.

A Vill and Parish are intended all one, unless the contrary be shewed. Vide Cro. Jac. 150. Batch and Gilbert.

The Court was moved to change the Ve∣nue in Ejectment laid in London, because the Lands in Question did concern the Poor in London; and therefore it was supposed they could not have an indifferent Trial. Per Rolls the Action is local, and cannot be removed, except you draw it from thence by your Plea, Stiles Rep. 395. Hunslop and Johnson.

In Ejectione Firme upon a Lease made at D.* 3.68 in Comitat' E. of Land called S. If Not guilty be pleaded, and a Venire fac' awarded

de Corpore Comitatus E. there not being any Vill named wherein the Land lies, it is er∣roneous; because this lies in some Vill out of which the Visne ought to have come to have tried it, and in such case it ought not to come de Corpore Comitatus, for this is lar∣ger, Hob. p. 89. Rich and Sheere.

Venire fac' awarded to the Coroners, ita quod B. one of the Coroners se non intromit∣tat, because he was Servant of the High-Sheriff, who was Lessor of the Plaintiff; it was said, the same was no Cause of Chal∣lenge, but the Court conceived it was, being confessed, Moor 623. Higgins and Spicer.

In Ejectione Firme against four who plead Not guilty,* 3.69 if the Plaintiff suggest that the Sheriff is of Affinity to one of the Defen∣dants, shewing how, and upon this prays a Venire fac' to the Coroners, and the De∣fendant does not deny it; and upon this the Venire fac' is awarded to the Coroners, it is well awarded. For altho' none of the De∣fendants may challenge the Array, because the Sheriff is of Affinity to one of the De∣fendants, yet the Plaintiff ought at the Trial either to challenge the Array, and so delay himself, or he ought not to try this during the time that he his Sheriff, which would be a great delay, 2 Rolls Abr. 668. Fox and Shepheard in Exchequer-Chamber.

Vide Raymund 572. Consent may make a Trial had in a foreign County, good.

In Ejectione Firme of three Acres of Land in Forresta de K.* 3.70 in Com. &c. If the Defen∣dant plead Non culp', the Venue may be de Vicineto Forrestae, for this is Lieu conus, and

by Intendment, forasmuch as the Defendant had not pleaded this in Abatemenc, this is out of any Parish or Vill, 2 Rolls Abr. 621. Phillips and Evans.

In Ejectione Firme against Baron and Feme;* 3.71 on Not guilty pleaded, and a Venire fac' granted, the Jury find the Wife Not guilty, and find a special Verdict as to the Husband, which Special Verdict is afterwards adjudg∣ed insufficient, a Venire fac' de novo shall be awarded for both, as well the Wife as the Husband. And upon this new Writ the Wife may be found guilty, because the Re∣cord and Issue is intire; and for this their Verdict is insufficient in all, and void. Vid. infra Tit. Special Verdict.

CHAP. X.

Of joyning Issue and Trial, and Bill of Exce∣ption. In what Cases there shall be Amend∣ment.

THE Record of the Nisi prius was a∣mended by the Plea-Roll, 1 Brownl. 133. Gaff and Randal.

Issue was joyned, the Defendant pleads Not guilty, and it was entred, and the a∣foresaid Lessor likewise, where it should have been & praedict' Querens similiter, and it was amended. So & praedict' Thomas similiter, where it should be praedict' Johannes simili∣ter, and it was amended, 2 Brownl. 102. Weeby's Case. 2 Rolls Abr. 199.

The Issue was Not guilty, and a Venire a∣warded retornable 3 Trin. and the Essoyn adjourned by the Plaintiff till Michaelmass-Term; and at the next Assises the Plaintiff, notwithstanding the Essoyn, and the ad∣journing it, procured a Nisi prius, by which it was found for the Plaintiff: And per Curi∣am no Nisi prius ought to issue out in this Case, because the Plaintiff himself by the adjourning the Essoyn, cast by the Defen∣dant until Michaelmass-Term, had barred himself of all Proceedings in the mean time. And the words in the Stat. W. 2. c. 27.* 3.72 are, Postquam aliquis posuerit se in aliquam inquisi∣tionem ad prox' diem allocet' ei Esson'; import, That the Essoyn shall not be taken at the Re∣torn of the Process against the Jury, altho'

the Jury be ready at the Bar. But then it was surmised, that the Defendant was not Essoyned; for the Name of the Defendant is E. 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 Ver∣dicts, 1 Leon. p. 134. Woodel and Harel.

In Dyer 89. the Plea was, quod non ejecit querentem de, &c. modo & forma; it was mo∣ved there, that it is not any Plea; and yet Dyer Vide 121. b.

The Defendant in any case of Misde∣meanour may say generally Non Culp' or traverse the point of the Writ, as ne forga pas, non ejecit, non rapuit, non manu∣tenuit.

In Ejectione Firme the Parties were at Issue,* 3.73 and by the Order of the Court the Tryal was staid, yet the Plaintiff privily obtained a Nisi prius; and the Chief Justice being in∣formed thereof, awarded a Supersedeas unto the Justices of Assise, before whom, &c. and yet the Inquest at the instance of the Plain∣tiff 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 en∣tred 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 De∣mur.

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,* 3.74 and to have Judgment against the Five De∣fendants 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 Ti∣tle 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.* 3.75 after Issue joyned in Ejectione Fir∣me, 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,* 3.76 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,* 3.77 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 pro∣per Rule of Court, and therefore the Judg∣ment 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,* 3.78 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,* 3.79 Et super hoc pro indifferentitria∣tione exitus praedict' inter partes praedict' eae∣dem partes ex eorum unanimi Consensu, & As∣sensu, & Consensu eorum Conciliat' & Attornat', &c. petunt Breve Dom' Regis Vic' Com' Cork dirigend' de Veni••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 Excep∣tion put in; and on Debate in B. R. Judg∣ment 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.* 3.80 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 pro∣duced; 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 Eject∣ment 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 E∣vidence 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 Pro∣bate 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 Chan∣cery. Answer in Chancery. Transcript of a Record. Inrolment of Deed. Doomsday-book. Variance between the Declaration and the Evidence. Demurrer to an Evidence. Exem∣plification of a Verdict. Where Issue in Eject∣ment 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 an∣other 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 it was ruled to be Error in the Exchequer-Chamber in the Bishop of Landaff's Case.* 3.81 But in Sir Thomas Jones's Rep. Devo∣ren 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 Wal∣cott.

In an Ejectione Firme in London upon a Lease made of Lands in Middlesex,* 3.82 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 E∣jectment,* 3.83 it was moved in Arrest of Judg∣ment, 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 intend∣ed it was after Verdict, and so is the com¦mon 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,* 3.84 for they are to be tried in the County where the Land l••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 Exche∣quer by Priviledge, Savile 10, 12.

Ejectment is brought against one in Custo∣dia in B.* 3.85 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 Mitti∣mus 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 be∣ing in the Isle of Wight, and the Jury of Sur∣rey, this Tryal is not allowable to try Con∣veyata, 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, whe∣ther 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,* 3.86 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 ha∣ving 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 Acti∣on brought, Sid. 315.

Interest in Equity disables a Man to be a Witness,* 3.87 but one who hath an equitable col∣lateral Title may be a Witness.

Parishioners may be a Witness to a Devise by which the Parish claims Lands to the Re∣lief of the Poor.* 3.88

Exception was taken against a Witness produced to prove the Lease of Ejectment,* 3.89 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 Wit∣ness was admitted to be sworn, Stiles Rep. 482. Fox and Swann.

One Coparcener cannot be Evidence for another in Ejectment,* 3.90 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 ex∣cepted against a Copyholder in Reversion after an Estate Tail,* 3.91 for a Witness to prove the Boundary of a Parish, and he was set a∣side for the possibility which makes him partial, M. 20 Car. 2. B. R. Hitchcok's Case.

In Ejectment of the Manor of S.* 3.92 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,* 3.93 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,* 3.94 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 Defen∣dant. It was objected against him, That in the Grant of the Rent, the Grantor coven∣anted 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 Questi∣on,* 3.95 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 Acti∣on on the Case;* 3.96 but upon Examination it ap∣pering, 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 Small∣brok's Case.

Exception was taken against a Witness to prove Execution of a Deed of Feofment by Livery and Seisin; Two Witnesses were subscribed to prove the Livery and Seisin,* 3.97 afterwards one of those Witnesses had an Estate at Will, made unto him of part of this Land, and because being produced as a Witness, to prove the Execution of the Deed was excepted against, because he was a par∣ty now interested in the Land, and so his Oath was to make his own Estate good. But per Cur' he may well be Sworn a Witness to prove the Livery and Seisin, this being in affirmance of the Feoffment, 1 Bul. 203.

The Father testified a Deed in Persuance and Affirmance of a Lease,* 3.98 made to his Son by himself, which the Court allowed, his Interest being past away, 1 Keb. 280. Jay and Ryder.

In Ejectment on Extent, on Mortgage on Trial at Bar. The Defendant excepted to the Plaintiffs Witness, because his Father paid a Debt as Security with the Defendants el∣der Brother for the Defendants Father; but there being no Counterbond, and there∣fore doubtful in Equity, whethere he as Heir could recover any thing against the Defen∣dant as Heir, the Court Swore him; but if

he were to let himself into a certain Interest, thô but in Equity, the Court will set him aside, 2 Rol. 345. Vincent and Tirrinsharp.

In Ejectment, one Baker who had been Sol∣licitor for P. the Defendant was produced as a Witness, concerning the Rasure of a Clause in a Will supposed to be done by P. The Question was,* 3.99 if he ought to be exa∣mined about this, because having been Sol∣licitor, he was obliged to keep his Secrets; but it appearing that B. had made this Dis∣covery to him, about which he was now to give his Evidence, before such time as he had retained him, Per Car. He was Sworn, aliter, if he had been retained his Sollicitor before. The same of an Attorney or Councel∣lor, 1 Vent. 179. Cutts and Pickering.

What shall be good Evidence in this Action and what not.

There are several Cases in our Books con∣cerning Evidence upon Leases made to try the Title, which I shall not at present med∣dle with, they being of no great use since the alteration of Practice in this Action; but I shall mention those which are of Dayly use, and principally aim at such Evidence which is allowed, or disallowed as to the proving of Title to Land, without the know∣ledge of which there are infinite Failures and Non-suits in this Action; and I shall first begin with Matters of Record, and then Matters of Fait, Bills, Answers, Depositions and other Sorts of Evidences, as to Antiqui∣ties,

Pedigrees; and what Evidence a Man must have to make Title in several Cases. And Lastly, Treat of Demurrers upon Evi∣dence and Exemplifications of Verdicts.

As to Matters of Record.

If a Deed be Pleaded the Party must shew it in Court;* 3.100 so if a Record be Plead∣ed, it must be sub pede sigilli; but Evidence its not absolutely necessary to shew either, if it can otherwise be proved to a Jury, as in 1 Vent. 257. In Evidence for Lands in Ejectment in Ancient Demesne, the Court admitted of Evidence to prove a Record to cut off the Intail (which was lost) and it may be proved to a Jury by Testimony; as the Decree in Henry the Eighth's time, for Tithes in London is lost; yet it hath been often allowed there was one. And further in this Case it appeared, That part of the Land was Leased for Life, and the Reco∣very with a single Voucher was suffered by him in Reversion,* 3.101 and so no Tenant to the Praecipe; yet in regard the Possession had fol∣lowed it a long time, the Court would pre∣fume a Surrender.

The Copy of a Record may be shewed and given in Evidence to a Jury,* 3.102 for Re∣cords are of so high a nature, and have such great credit in the Law, that they cannot be proved by any other means than by themselves, and no Rasure, or Interlineation shall be intended in them; and therefore a Copy of a Record being testified to be true,

is permitted to be given in Evidence; but the sure way is either to exemplifie it under the great Seal, or at least under the Seal of the Court, 10 Rep. Leyfeild's Case.

In Ejectment for Lands in Brecknockshire; Upon Not guilty and Tryal there, The De∣fendant gave in Evidence, a Recovery in a Writ of Quod ei deforceat, which is their Writ of Right at the great Sessions there; and Issue being tendered therein, the De∣fendant produced an Exemplification of the Record under the Seal of the great Sessi∣ons, but not the Record it self. The Plaintiff Demurs to the Evidence, and the Question was, whether the Exemplification maintain∣ed the Issue or not. It was agreed, That a Sworn Copy of a Record in Wales might be given in Evidence,* 3.103 but not an Exempli∣fication, because the Court here ought not to take notice of such an inferior Seal; but if it were Exemplified under the great Seal, it would be Evidence and Proof tho the Record it self were lost. And yet White∣head's Case was, That an Exemplification under the Seal of the Mayor of Bristol, of a Recovery suffered there under the Town Seal, should be given in Evidence, tho the Record it self could not be found.

Note, It must be given in Evidence in the like manner as it is to be pleaded, and that is under the great Seal, Hardress 118, 119, 120. Henry Olive versus George Gowin. And by Hales, Exemplification of a Recovery in the Marquess of Winchester's Court, in ancient Demesne was allowed because it was anci∣ent. One had gotten a presentation to the

Parsonage of G. in Lincolnshire, and brought a Quare Impedit, and the Defendant Pleaded an Appropriation, and there was no Licence of Appropriation produced, but because it was ancient the Court will intend it; and in an ancient Recovery, they would not put one to prove Se••sin of a Tenant in a Praecipe, Mod. Rep.

The Scyrograph of a Fine may be given in Evidence.* 3.104 (but not delivered to the Jury, 2 Sid. 145, 146.) in a general Issue in Assize, Plowd. Com. 411.

Note,* 3.105 If a Fine be given in Evidence with five years Non-claim, the Fine must be shewed with Proclamations under Seal, and the Scyrograph will not serve.

A Fine or Recovery,* 3.106 may be found by the Jury without shewing it under Seal; but they cannot find against what is admitted by the Record, Sid. 271.

The Copy of a Recovery was suffered to be given in Evidence,* 3.107 the Recovery it self being burnt, Mod. Rep. 117. Green and Proud.

The Court allowed an old Recovery,* 3.108 thô no Tenant to the Praecipe could be proved, but it shall be intended, Cro. Jac. 455. Mod. Rep. 117.

Nothing may be delivered in Evidence to a Jury, but that which is of Record or un∣der Seal, but by consent, 2 Sid. 145.

As to Letters Patents, vide infra Deeds. Dyer 167. The Jury find the Constat of Letters Patents.

One may not shew in Evidence to a Jury an Inspeximus of a Deed inrolled in Chancery,* 3.109

if it be not a Deed of Bargain and Sale inrol∣led there; for if it be a Deed of Feoffment, the Party must shew the Deed it self, for the Inspeximus is no matter of Record,* 3.110 Stiles Rep. 445. But by Rolls, tho' the Inspeximus be the Inspeximus of the Inrolment, and not of the Deed it self, yet if it be an Ancient Deed, it may be given in Evidence.

The Earl of—being a Popish Recu∣sant convict,* 3.111 presented the Lessor of the Plaintiff to a Rectory, who was instituted and inducted, but the Record of the Con∣viction was burnt (as was supposed) in the Fire at the Inner-Temple. The Defendant of∣fered to prove it by the Estreats thereof in the Exchequer, and by the Inquisition found and returned here of Recusant's Lands. Per Hale & tot' Cur', in such a Case as this a Record may be proved by Evidence, because the Conversion here is not the direct matter in Issue; as was Sir Paul Pinder's Case in an Action of Trover and Conversion for Goods, the Proof depended upon a Fieri facias and a Venditioni exponat; and yet in that Case, because the Fieri facias could not be found upon Record,* 3.112 it was admitted to be proved in Evidence, Hardr. 323. Knight and Daw∣ler.

But when he that sues an Elegit, brings an Ejectment to try the Title,* 3.113 he must in Evi∣dence shew the Elegit filed.

A Transcript of a Record, or Inrolment of a Deed,* 3.114 may be given in Evidence, for they are things to be credited, being made by Officers of Trust, but Inrolmene of a Deed which needs no Inrolment, is no Evidence.

In Ejectment of Lands in the Parish of Long Hope; the Defendant pleads that they are part, and held of the Manor of Long Hope, which is ancient Demesne; and on Issue thereupon Doomsday-book was brought in,* 3.115 by which it appeared, That the Manor of Hope is the Land of W. de B. who held of the King; which Per Curiam doth not maintain the Issue, unless the Defendant had pleaded further, that the Lands are as well known by the Name of Hope as Long Hope; this Book is the Tryal, and the Court cannot take notice of the same. Respondeas Ouster, 1 Keb. 520. Holdy and Hodges.

Matters of Fait.

As for Deeds shewed forth, and given in Evidence, the Learning thereof is excel∣lently delivered in Dr. Leyfeild's Case, 10 Rep.

It is a Maxim in Law, That he which is Party or Privy in Estate or Interest, and he that justifies under him, shall shew the Original Deed to the Court, for this Reason; because to eve∣ry Deed two Things are requisite. 1. That it be sufficient in Law, and this is called the Legal Part, and the Judgment of this be∣longs to the Judges. The other concerns Matters of Fact (viz.) if it were sealed and delivered, and this is tried per Pais; or whether it be rased or interlined, or upon Limitation, Condition, Revocation, and the like. Therefore it hath been always thought dangerous to permit any upon the General

Issue to give in Evidence, that there is such a Deed which they have heard or read, or to prove it by a Copy.* 3.116 But in Cases of Ex∣tremity, as where Deeds are burnt by Fire; upon the General Issue the Judges will suffer to prove a Deed to a Jury by Testi∣mony.

And what hath been said as to the Legal Part of a Deed, holds as to Letters Pa∣tents.

A Deed cancelled by Practice,* 3.117 was al∣lowed to be read in Evidence in Action un∣der that Deed, the Practice being proved, Hetley 138.

Lease and Release were given in Evidence to intitle the Plaintiff, and they were both named haec Indentura, and were not indent∣ed, yet good by Hales, Norf▪ Assises, 1668. Bryant's Case. In Negus and Reynell's Case, in Evidence to a Jury it was held, 1. That a Proof that there was a Revocation, is suf∣ficient for the Heir, without producing the Deed it self.* 3.118 2. A Lease recited in the Re∣lease, was admitted to be proved by Wit∣nesses to the Release, without shewing the Lease it self, which was imbezelled by the Lessor of the Plaintiff, P. 13 Car. 2. B. R.

And the Copies of Deeds have been ad∣mitted in Evidence, the Original agreed to be burnt. So in Ejectment at the Bar, a Copy of a Deed burnt, made by the Wit∣ness, to carry about to Council, was allow∣ed for Evidence; so was Do••se's Case at Oxon. and Thyn's Case. The Testimony of a Wit∣ness of the Contents of a Deed burnt, but

such Witness was refused at Lent Assises by Windham, tho' the Deed were in the Adver∣saries own Custody, Mod. Rep. p. 4. M. 21 Car. 2. B. R.

It is said, That a Copy of a Deed is good Evidence where the Defendant hath the Deed, and will not produce it, Mod. Rep. 2 Keb. 483. 15 Car. 2. Stroud and Hill.

One claimed under a Lease for years of a Prebend, &c. and after he claims under a Lease from a Nominal Prebendary thereof, founded in the Cathedral Church of Lincoln; and he offered (at a Tryal at Bar in Eject∣ment) to read a Copy of a Lease out of the Leiger-Book of the Dean and Chapter of Lincoln,* 3.119 but it was disallowed per Curiam; for the Book it self is but a Copy, and a Co∣py of a Copy is no Evidence, P. 27 Car. 2. B. R. Cotterel's Case. Leiger-Books and Pa∣per-Books cannot be exemplified, but when offered in Evidence, must be produced them∣selves, Hardr. 117, 118.

The Recital of a Lease, without shewing it,* 3.120 ruled to be no Evidence upon a Demur∣rer, Ra. Entr. 318. 1 & 2 P. & M. Rot. 13. B. R. cited. Hardr. 119, 120.

A Copy of the Counterpart of a Lease,* 3.121 the Lease being Lost, allowed to be Evi∣dence.

Tho' the Seals be broken off a Lease,* 3.122 yet the Deed may be given in Evidence, 1 Mod. Rep. fol. 11. Q. if the Deed be pleadable.

A Copy of a Court-Roll may be given in Evidence,* 3.123 where the Rolls are lost or not lost, 15 Car. 2. B. R. Snow and Cutler.

For if a Deed be pleaded,* 3.124 the Party must shew it in Court; but if it be given in Evi∣dence, it is not necessary to shew it, if it can otherwise be proved to a Jury; for Wit∣nesses may prove the Contents of a Deed 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,* 3.125 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,* 3.126 under which a Title of Land is made, must be shewed it self; and the Pro∣bate 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. E∣den 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 no∣thing 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 con∣clusive, 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 Justi∣ces of the Bench there would not direct the Jury,* 3.127 that the Probate of a Will before the Archbishop of Canterbury (the Testator dy∣ing in his Province) and also the Bishop of Fernes, were sufficient and conclusive Evi∣dence, but only affirmed it was good Evi∣dence, 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 Admi∣nistrator: 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,* 3.128 and shewed only a Bill in Chancery preferred by the Heir, under whom the Lessor of the Plaintiff claims against the Devisee, where∣by the Will was set forth, and confessed in the Answer. But per Curiam it is no Evi∣dence, tho' a Possession were proved accord∣ingly 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 Complai∣nant.

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 disclo∣sed

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,* 3.129 That this Bill is no Evidence, because it only contains Matter suggested perhaps by the Council or Sollicitor, with∣out 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 be∣ing disclosed by the Party himself; other∣wise they would not allow a Bill in Evidence, if there be not Answer and other Proceed∣ings 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 Amer∣sham'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 Al∣legation: 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 Ber∣nardiston, 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 a∣gainst

all claiming under him.* 3.130 But Twisden denied it, because an Answer does not dis∣cover the whole Truth, and therefore shall be only admitted against the Party himself that made it, and not of one Defendant a∣gainst another, much less against a Stranger, 2 Car. 2. B. R. And by Ley, Chamberlain and Dodderidge, a Defendant's Answer in an Eng∣lish 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 Defen∣dant'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;* 3.131 and it was a Question in Leigh and Ward's Case in a Tryal at Bar in Ejectment, where the Infant was Party, whe∣ther 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 In∣fant, 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,* 3.132 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 De∣fendants, Godb. p. 193. Sir Francis Fortescue,

Depositions taken in Chancery in perpetuam rei memoriam,* 3.133 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,* 3.134 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,* 3.135 988. whereby a Conveyance made in 986. was lost and proved: Per Cur', being so old, and the Records of the Rolls burnt since, it is good Evidence; tho' the Bill and Answer were not in it, 2 Keb. 31.

In Ejectment for Lands in Kent, it was held upon Evidence by the Court, and by Advice of other Judges, whom one of the Barons was sent to consult, That if one Witness be examined for the Defendant de bene esse to preserve his Testimony upon a

Bill preferred,* 3.136 and before Answer, and up∣on an Order of Court for his Examination made upon hearing of Council on both sides; and if after Answer the Witness die before he be examined again, he being sick all the while, yet the Examination of such a Witness shall not be read in Evidence, be∣cause it was taken before Issue joyned.

Divers Depositions in Chancery taken de bene esse,* 3.137 without Answer of the Defendant, were produced in Evidence; but the Court refused to permit the reading of such Depo∣sitions for Default of the Answer; and it was agreed, That the Court is not bound to such Evidence; but the Course in such Case is by Order of Chancery to require the ad∣verse Party to admit such Evidence; but this doth not bind the Courts of the Common Law, Sir Thomas Jones p. 164. Poricye's Case.

Two were made Parties to a Bill, one had Title, but the other does not claim Ti∣tile, but in his Answer sets forth many things which made for the Title of the other De∣fendant: And between other Parties in B. R. these Depositions were prayed to be admit∣ted in Evidence to prove the same Title; but it was not suffered, because whatever the Defendant saith, he saith it in Defence of himself and partially. And Chamberlain Ju∣stice said, The Answer of a Defendant is not good Evidence for any purpose but a∣gainst himself, 2 Rolls Rep. 311. Berisford and Phillips.

A Voluntary Affidavit made before a Master of the Chancery, cannot be given in Evidence at a Tryal, Stiles 446.

Decree or Decretal-Order under the Ex∣chequer-Seal,* 3.138 which recites the Proceedings; and if it have Bill and Answer, allowed to be read, 1 Keb. 21. Trowel and Castle.

PEDIGREE.

In Ejectione Firme for the Barony of Cocker∣mouth and the Lands, &c. the Lessor shewed an Inquisition in tempore R. 2. and finds an Intail to Henry Earl Piercy, and derives his Title under his Third Son, and offers in E∣vidence Dugdale's Baronage, but it was not allowed.

In Ejectment the Earl of Thanet makes his Title by a Gift in Tail by King Edward II. to Robert de Clifford, and the Heirs of his Body; and to prove him to be Heir of the Body of the said Robert, he produceth a Chart of his Pedegree; which (deriving him from the said Robert) shews him to be his Heir. And Sir William Dugdale and other Heralds being sworn, they affirm that the Chart was deduced out of the Recodrs and and Ancient Books in the Heralds Office; but the Court would not allow this for Evi∣dence, without shewing the Books and Re∣cord out of which they were deduced. And after an Ancient Book was shewed by them, which was allowed for Evidence; Sir Thomas Jones 224. Earl of Thanet's Case.

Office found, is no concluding Evidence, Sir Tho. Jones 224.

What Matter may or must be Pleaded, and what Matter may or must be given in Evidence.

It is a Rule in Law,* 3.139 in all such Actions wherein one cannot Plead, there the Mat∣ter to be Pleaded shall be given in Evidence, and found per Verdict, but where the Party may Plead the same, is to be Pleaded by him. Therefore in Ejectione Firme, Trespass, &c. in Action on the Stat. 5 R. 2. cap. 7. and other personal Actions,* 3.140 a Collateral Warranty cannot be Pleaded in Bar; but he shall have the benefit of it, by giving the same in Evi∣dence to a Jury, and the same is to be found by Verdict of the Jury; so is Seymor's Case, 10 Rep. 97. That Collateral Warranty may be given in Evidence, on Not guilty Plead∣ed in Ejectione Firme, because in that and other personal Actions, that may not be Pleaded in Bar, 1 Bulstr. 166, 167. Haywood and Smith. 10 Rep. 97. Seymor's Case, 1 Rep. Chudley's Case.

The Jury may find a Condition to De∣feat a Freehold of Land,* 3.141 altho' it be not Pleaded; but of things in Grant, they must also find the Deed of the Condition, 21 Ass. 14.

The Jury may find Estoppel, which can∣not be Pleaded,* 3.142 and Estoppels which bind the Interest of the Land, as the taing a Lease of a Mans own Land, by Deed in∣dented, and the like, being specially found by the Jury, The Court ought to Judge ac∣cording to the Special Matter, 2 Rep. 4. Goddard's Case.

What Evidence the Jury shall have with them after Evidence given.

The Jury may not carry any other Evi∣dence with them, but what is delivered to them by the Court, and shewn in Evidence. Upon Evidence to a Jury, to prove J. S. to be Heir to W. S. The Court will not accept the Pedigree drawn by an Herald at Arms for Evidence, nor will suffer the Jury to have it with them; its but only Information for Direction, p. 8. Jac. B. Plumton and Ro∣binson.

If an Exemplification comes out of Chan∣cery, of Witnisses there examined upon Oath who are Dead, the Jury shall have it with them; not so if some are Living and some are Dead, p. 10 Jac. B. Tomlinson and Croke.

If after Evidence given to the Jury at the Bar, and they depart, the Solliciter of the Plaintiff come to them and delivers to them a Church Book, to take an Age which was given to them, in Evidence before at the Bar, and their shewed to them, and after they found for the Plaintiff; yet this shall not avoid the Verdict, because it was no other than what was given to them in Evi∣dence before, Vicars and Farthing's Case.

What shall be good Evidence to make Title in several Special Case.

A Verdict for the Lessee is good Evidence for a Reversion in Ejectment, Hardr. 472.

In Ejectment of a Rectory,* 3.143 The Evi∣dence was of the taking of Tithes only, and not Entry into the Gleble, and the Plaintiff was Non-suit; so it was in Perry and VVhee∣ler's Case, 1 Keb. 368. for a Rectory con∣sists of Glebe and Tithes, Latch. 62. Hems and Stroud.

A Parson in the Ejectment of a Rectory,* 3.144 (if he will make out his Title) must prove Admission, Institution aud Induction; his reading and subscribing the Articles, &c. and his Declaration in the Church of his full and free assent, and consent to all the things contained in the Common Prayer; 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 Pre∣sentation,* 3.145 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 up∣on 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 Qua∣re Impedit, Sid. 221. Dr. Crawly's Case.

In Ejectment.* 3.146 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 ac∣cording to this Grant; and it was a Questi∣on, 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 Im∣propriation was presentative till Ed. 4th time, and could not be appropriated with∣outh 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 ac∣cordingly, p. 27. Car. 2. Coterel's Case.

In Ejectment for a several Fishing. On Not guilty,* 3.147 if the Plaintiff derive a Title as high as the Abbies, he need not shew any Pa∣tent, 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 Defen∣dant 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 In∣rolment, but both lived together; but the Father was reputed Owner, and paid the

Rates, and a year after released and con∣firmed 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.* 3.148 But per Cur. The Feoffment with fu∣ture 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,* 3.149 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 re∣cited 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 its said, That the Defen∣dant 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 Ex∣tent continues, it cannot thus be denied but there is Glebe, M. 14. Car. 2. B. R. Berry and Wheeler.

In Ejectment,* 3.150 The Defendant shall not give in Evidence, a former Mortgage or Conveyance made by himself, and there∣fore in such Cases, its 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 shew∣ed,* 3.151 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 Com∣mission issued,* 3.152 and a Certificate upon this, upon all the Possessions, and their values which belonged to the Priories; and there∣fore 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 Declara∣ration, or what Evidence shall be said to maintain the Issue.

In Ejectione Firme, if the Plaintiff De∣clares upon a Lease made by two,* 3.153 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,* 3.154 where one had nothing in the Land, and so void as to him; yet this is a material va∣riance 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,* 3.155 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,* 3.156 Cr. Jac. 166. Mantler's Case.

If the Declaration be of a Lease of three Acres,* 3.157 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 Declarati∣on: And it was said, The Plaintiff cannot have a Verdict,* 3.158 because the Verdict in such a Case, ought to agree with the De∣claration; but per Cur. the Verdict may be taken according to the Title, and so it was. Qu. how the habere fac', Possession in such case shall be executed, Sid. p. 229. Ablett and Skinner.

The Plaintiff Declares of a Lease made the 14 of January,* 3.159 30 El. Hab. from the Feast of Christmass then last past for three years, and upon the Evidence the Plaintiff shew∣ed a Lease bearing date the 13 of January eodem ann. And it was found by Witnesses, that the Lease was Sealed and Delivered up∣on the Land the 13th day. Per Cur. Not∣withstanding this variance, the Evidence is good enough to maintain this Declara∣tion, for if a Lease was Sealed and Deliver∣ed the 13 day, it was then a Lease of the 14 4 Leon. p. 14. Force and Foster.

The Plaintiff declared in Ejectment of 100 Acres of Land,* 3.160 and shewed his Lease in Evidence of 40 Acres. And it was urged, That he failed of his Lease, for there was no such Lease, as that whereof he did Count. But per Cur. it is good, for so much as was contained in his Lease, and for the Residue the Jury may find the Defendant Not guilty, Cr. Eliz. p. 13. Guy and Rand, and yet it is held, 2 Rolls Abr. 72. Brown and Ells.

If the Plaintiff Declare in Ejectment up∣on a Lease for years of three Acres, and in Evidence he shews but a Lease of a Moiety, this is a material variance, for it is not the same Lease.* 3.161 Ejectione Firme of so many Acres of Meadow, and so many Acres of Pasture. Upon Not guilty, the Jury find a Demise de Herbagio and Pannagio of so many Acres; the Question was in Wheeler and Toulson's Case, Hard. 330. If this Evi∣dence shall maintain the Issue, The Court inclined it did not. Ejectment doth lie of a Lease of Herbage, and then by the same

Reason, the Plaintiff ought to Declare ac∣cordingly, and Herbage doth not include all the profit of the Soil, but part of it.

The Declaration was of a Joynt Lease made by two,* 3.162 and on Evidence it appears they were Tenants in Common: By three Justices against one it is good, Cr. Jac. 166. Mantle's Case, 83.

Ejectment was of Lands in Oxenhope, and the Witnesses upon examination did swear there were two Oxenhopes, upper, and nither, without Addition; and upon this the Plain∣tiff Nonsuited at York Assizes.

If a Man Declare of a Lease made by Baron and Feme, and gives in Evidence a Lease made by the Baron only; this is a material variance.

Note, The day of the Filing of the De∣claration in the Ejectment, may be given in Evidence, where the Demise is laid the same Term, Vid. Siderf. p. 432. Perdyer's Case.

Of Demurrer to the Evidence.

It was held by all the Court upon Evi∣dence to a Jury,* 3.163 That if the Plaintiff in E∣jectione Firme, or other Action, gives in E∣vidence any matter in Writing or Record, or a Sentence in the Spiritual Court, (as it was in this Case) and the Defendant of∣fers to Demur there upon, The Plaintiff ought to joyn in Demurrer or wave the Evidence, because the Defendant shall not be compel∣led to put a matter of difficulty to the Lay∣gents,

and because there cannot be any va∣riance of a matter in Writing; but if ei∣ther Party offer to Demur upon any Evi∣dence given by Witness, the other unless he pleaseth shall not be compelled to joyn, be∣cause the Credit of the Testimony is to be examined by a Jury, and the Evidence is uncertain, and may be enforced more or less; but both Parties may agree to joyn in Demurrer upon such Evidence, and if the Plaintiff produce Testimonies to prove any matter in fact, upon which a Question ariseth, if the Defendant admit their Te∣stimones to be true he may Demur; but in the Case of the King, the other Party may not Demur upon Evidence shewn in Writing, or Record for the King, unless the King's Council will thereunto assent:* 3.164 But the Court in such Case, shall charge the Jury to find such special matter; but this is by Prerogative, who may waive the Demur∣rer, or take Issue at his Pleasure, Cro. Eliz. 751. Midlet and Baker, 5 Rept. 104. Baker's Case.

And in 1 Inst. p. 72. If the Plaintiff in E∣vidence shew any matter of Record or Deeds, or Writings, or any Sentence in the Ecclesiastical Court, or other matter of E∣vidence by Testimonies of Witnesses, or o∣therwise, whereupon doubt in Law ariseth, and the Defendant offer to Demur in Law thereupon, the Plaintiff cannot refuse to joyn in Demurrer, no more than in De∣murrer on a Count, Replicat. &c. and so è Converso, may the Plaintiff Demur in Law on the Evidence of the Defendant; but the

King's Council shall not be inforced to joyn in Demurrer. A Demurrer to Evidence never denies the truth of the fact, but con∣feseth the fact, and denies the Law to be with the Party that shews the fact, Plowd. Newis and Scholastica's Case.

If a Demurrer be upon the Evidence, the Evidence ought to entred verbatim, Keb. 77.

Exemplification of a Verdict.

A Verdict against one whom either the Plaintiff, or Defendant claims, may be gi∣ven in Evidence against the Party so claim∣ing; Contra, if neither claim under it, Mich. 1656. B. R. Duke and Ventres.

If a Verdict pass for two Defendants, al∣tho' by default of ones not putting in Bail, They may not have Judgment, yet they may exemplifie their Verdict, to give this in Evidence to another Jury, 2 Rolls Rep. 46. Dennis and Bremblecot.

In Ejectment brought by a Reversioner, or Debt upon the Statute of Tithes, Ed•• 6. brought by a Proprietor of Tithes, after a Verdict at Law; the Lessee or the present Proprietor, the Reversioner of the Lands or Tithes, shall hive advantage of the Verdict, and gave it in Evidence: And the Reasons are, because they cannot be immediate Parties to the Action or Suit, for that must be prosecuted by the Lessee or present Te∣nant, and they may give in Evidence, as well as the Plaintiff himself, Hard. 2. Rep. 472.

CHAP. XII.

Rules for Learning of Special Verdicts. Of E∣stoppels found by the Jury, and how they shall bind. What is a material variance between the Declaration and Verdict. Of priority of Possession. Where the Special Conclusion of the Verdict shall aid the Imperfections of it. Where, and in what Cases the Verdicts makes the Declaration good. Verdict Special taken according to intent. Difference where the Verdict concludes specially on one Point, and where it concludes in general, or between the Special Conclusion of the Jury and their Re∣ference to the Court. Circumstances in a Special Verdict, need not be precisely found. Where the Judges are not bound by the Con∣clusion of the Jury. Of certainty and un∣certainty, in a Special Verdict. Of the find∣ing quo ad residuum, certainty or uncertain∣ty in reference to Acres, Parishes, Vills, Place. Of Verdict being taken by Parcels. How the Ejectment of a Manor to be brought. Of a Verdict, on other Lease or Date than is de∣clared upon, which shall be good or not. Of the Juries finding parcel. Where Verdict shall be good for part, and void for the residue. The time of the Entry of the Plaitiff's 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 Verdict may be amended.

A General Verdict.

IF at a Tryal at Bar there be matter in Law, and the Judges agreeto it, and so the Jury do not find it Specially, but give a Ge∣neral Verdict, The Judgment shall be ac∣cording to the Verdict, and cannot be staied, 1 Bulstr. 118. Platt and Sleep.

Ejectment of seven Messuages sive Tenemen∣tis, is ill after a General Verdict; and its ill on Demurrer; but this might have been helped by taking Verdict of either. So it is where Ejectment is de Messuagio & Tene∣mento, its ill after a General Verdict, 2 Keb. 80. 82. Burbury and Yeoman; in this Case the Verdict was general for the Plaintiff, for the Messuages, and non culp. for the Tenements it seems it had been good. But Hales Chief Baron, refused to allow of such finding in the Home Circuit: And it was said by the Court as this Case is, The Plaintiff may not Aid himself per releasing of part, as perhaps he might, had there been Lands also in the Declaration, 295 Mesme Case.

But first,* 3.165 I shall set down two or three things observable, as Rules or Directions of the Court, in reference to Special Ver∣dicts.

It was made a Rule of Court, That in finding of Special Verdicts where the Points are single, and not complicated, and no Special Conclusions; the Council if requi∣red, shall subscribe the Points in Question, and agree to amend the omissions or mi∣stakes

in the mean Conveyances according to the truth, to bring the Points in Questi∣on to Judgment. It was likewise Order'd in Roll's time,* 3.166 That the unnecessary finding of Deeds, in haec verba upon Special Verdicts, where the Question rests not upon them, but are only derivative of Title, shall be spared and found briefly according to the substance they bear in reference to the Deed, be it Feoffment, Lease, Grant, &c.

Note,* 3.167 In 2 Rolls Rep. 331. An Attachment was awarded against the Defendants, be∣cause they would not bring in their Evi∣dence, for to have a Special Verdict in E∣jectione Firme; and this by the course of the Court, because there is no other remedy.

As to the Rules of Special Verdict.

Estoppels,* 3.168 which bind the Interest of the Interest of the Land, as the taking of a Mans own Land by Deed indented, and the like being Specially found by the Jury, The Court ought to Judge according to the Spe∣cial matter; for the Estoppels regularly must be pleeded, and relied upon by apt Con∣clusion, and the Jury is Sworn ad veritatem dicendam; yet when they find veritatem fa∣ctis, they persue well their Oath, and the Court ought to judge according to Law. So may the Jury find a Warranty, being given in Evidence, tho' it be not pleaded, 10 Rep. 97. vide supra tit. Evidence. And if the Jury find the truth, the Court shall adjudge it to be a void Lease, vid. Cr. Eliz. 140. Sutton and Rawlin's Case.

In Ejectment,* 3.169 if it appear by the Record of a Special Verdict, that the Plaintiff had Priority of Possession, and no Title be proved for the Defendant, the Plaintiff shall have Judgment, as in Coryton's Case. J. Hiblin was seised in Fee of the Lands in Question, and by his last Will deviseth un∣to A. H. Lessor of the Plaintiff, if my Son T. H. happen to have no Issue-male after the Death of my Wife; and if he have Issue-male, then 5 l. to be paid to A. H. The Devisor died seised, leaving Issue, Thomas, who had R. Issue-male. Ann the Wife of the Devisor survives him, and after dies; and they find that A. and Eliz. were Sisters and Coheirs of the said R. the Issue-male, who died without Issue. And they found the En∣try of the Lessor of the Plaintiff, and the Lease to the Plaintiff prout in the Declarati∣on; and that the Defendant, as Guardian to A. and Eliz. ousted him. The Points in Law in this case were not argued, because it appears by the Record, That the Lessor had Priority of Possession, and there is not any Title found for the Defendant. For tho it be found that A. and E. were Coheirs to the Issue-male, that is to no purpose; be∣cause it was not found that they were Heirs of the Devisor; and the Estate-Tail (ad∣mitting it were so) appears to be spent by the Death of Thomas Hiblin without Heir-male, and so they had no Title; and then the Priority of Possession only gives a good Title to the Lessor of the Plaintiff against the Defendant and all the World besides,

but only against the Heir of the Devisor, 2 Sanders 112. Allen and Rivington.

In Bateman and Allen's Case there was Special Verdict in Ejectment, sed utrum the Entry of the Defendant upon the matter be lawful or not, they pray Advice. And if the Entry were lawful, they find for the De∣fendant, if not, &c. Now forasmuch as in all the Verdict it is not found that the De∣fendant had the primer Possession, nor that he entred in the Right, or by the Command of any who had Title; but it is found he entred upon the Possession of the Plaintiff without any Title, his Entry is not lawful; and the Plaintiff had good Cause of Action against him, wherefore the Plaintiff shall recover, and so held all the Court; where∣fore they would not hear any Argument as to matter of Law. But if the Conclusion of the Verdict had been si, &c. whether the Entry of Hill and his Wife were lawful or not, then the Judgment should have been upon Matter in Law; for that it should be intended that the Defendant had Title, i•• the Lessor of the Plaintiff had no Title 〈◊〉〈◊〉 and that the Plaintiff had not Cause of Acti∣on, but now not, Craw and Ramsey. Vi•• infra. Cro. El. 437. Bateman and Allen. Pl•• Nervis & Scholastica.

Special Verdict finds W. B. seised, and de∣vised the Reversion of all Messuages (ex∣cept in D.) to the Heirs of the Devisor, an•• that Tho. B. was Brother and Heir, and en••¦tred and leased to the Plaintiff till the D••••¦fendant ejected him, and have found no T••••¦tle for the Defendant, now being there is 〈◊〉〈◊〉

Title found for the Defendant, nor of what Land this Ejectment was (viz.) That it was not of that devised before the Verdict, is im∣perfect, and otherwise the Plaintiff must have had Judgment upon the prior Possession.

In Craw and Ramsey's Case, 2 Ventr. 3. the Jury find that Patrick who was the Issue born in England, entred, and was seised; but that he, Anno Dom. 1651. did bargain and sell, virtute cujus the Bargainees were seised prout Lex postulat, and then bargained and sold it 1662. Wild and Archer were of Opinion, That the Plaintiff could not have Judgment upon that Verdict, for that they their Bargainees seised prout Lex postulat, but they find the Defendant entred, and so the pri∣mer Possession is in him, which is a good Title against the Plaintiff, for whom none is found, it being not found that Patrick en∣tred. But Tirrel and Vaughan said, It shall be intended that Patrick entred; for a Ver∣dict that leaves all the Matter at large to the Judgment of the Court, will be taken some∣times by Intendment,* 3.170 as well as where the Jury conclude upon a Special Point, Car. Jac. 64. The Jury find an Incumbent re∣signed, it shall be intended the Resignation was accepted. So Hob. 262. And where they find the Bargainees seised,* 3.171 prout Lex postulat, that doth not leave it doubtful, whether seised or not seised; but whether by Right or by Wrong,* 3.172 for Seism must betaken as found expresly, neither do they find any other in Possession; yet however if the De∣fendant had primer Possession, he shall not have Judgment, if no other Title be found

for him, as in Cr. Car. 57. Hern and Allen The Husband makes a Feoffment in Fee with Warranty, and takes back an Estate to him and his Wife for their Lives, &c. The Husband dies, the Wife enters; the Question was, if the Entry of the Wife shall remit to the Estate-Tail; but the Jury find the Hus∣band was seifed prout Lex postulat, but no Entry by him; and no Remitter can be wrought without an Entry, 2 Bulstr. 31, 32.

Ejectione Firme of the Rectory of M. of the Lease of Henry Fowler, and that the Lessor was presented by the Lord Windsor upon Deprivation of A. L. Upon Evidence it ap∣peared, That the Advowson was the Inheri∣tance of the Lord Windsor, who granted the next Avoidance thereof to Dr. G. The Church became void: Fowler, Father of Henry, by Simony procures Henry to be pre∣sented, who was instituted and inducted; and so the King presented A. L. who was afterwards deprived: But ten days before Richard Fowler procures a Grant of the next Avoidance to J. S. and procures J. S. to present Henry Fowler. Per Cur' his Presenta∣tion is meerly void, he being disabled ever after to take the same place; and every one who is in Possession, hath good Title against him and his Lessee, so as the Plaintiff can∣not maintain this Action, Cro. Jac. 533. Booth and Rich. Potter.

If the Plaintif hath not Title according to his Declaration, he cannot recover, whe∣ther the Defendant hath Title or not, and wheiher he be a Disseissor or not; as where

an Infant makes a Lease at Will, who enters and ousts the Plaintiff, and the Plaintiff brings Ejectment. Vid. 1 Leon. 211. Cotton's Case.

Ejectione Firme was brought upon a Lease made by Roan of the Rectory of, &c. Spe∣cial Verdict found Glover put in a Caveat to the Bishop in the Life of the Incumbent; the Incumbent dies, and afterwards by the Presentation of Mantle, Morgan was insti∣tuted. And after Wingfeild presents Glover, who was instituted and inducted; and after the King presents his Clerk Roan, who was inducted; and after Morgan was inducted, and after Roan enters, and lets to the Plain∣tiff, who upon the Entry of the Defendant, brought his Action. Now Morgan was in∣stituted, and after Glover was inducted, which was void; but by that he had the Pos∣session, and afterwards Roan the Presentee of the King is inducted; and after Morgan is inducted; and after Roan enters, and Glo∣ver enters upon him: The Question was, Who had better Possession Roan or Glover? Per tot' Cur' Roan had the better Possession, if it be admitted that the King had not any Title to present; for tho' Glover had the first Possession, yet his Possession was defeat∣ed by the Induction of Morgan, who had the true Right; and then when Roan enters upon him, he had the first Possession, and better Right against any other praeter Mor∣gan; and by Consequence the Action will lie by the Lessee of Roan against Glover, Moor 191. Hi••thorn and Glover.

On Special Verdict it was found, that it was Copyhold, parcel of the Manor of S. demisable for three Lives, and that by the Custom of the Manor the first Name in the Copy should enjoy it during his Life, & sic successive; and that the Lord A. granted it by Copy to Alice W. R. W. and J. W. her Sons for three Lives; that R. W. made Waste in cutting down Timber Trees. Lord A. sei∣sed it, and granted it by Copy to the Les∣sor of the Plaintiff for his Life, and after li∣censed him to let Tenements infra script' in quibus, &c. for five years, if J. the Lessor of the Plaintiff so long lived; that he let to the Plaintiff for three years, who entred, and the Defendant ousted him. Et si super totam, &c. per Cur', inasmuch as it is a good Lease made to the Plaintiff, and no Title at all appears for the Defendant, but that he entred upon the Plaintiff's Possession, and not by Command of any who had Right, altho' there were some matter between the Plaintiff and the first Copyholder, yet Judg∣ment ought to be pro Quer', Cro. Jac. 436. Worledge and Benbury.

So in Powel and Goodard's Case, Tr. 21 Car. 2. B. R. in Ejectment, Special Verdict finds W. G. seised in Fee, and devised that P. and J. G. should be Trustees, and take the Pro∣fits till the full Age of H. G. whom he makes his Heir. W. G. doth authorise his Feoffees to sell so much of his Lands for pay∣ment of Debts and Funeral Charges as in their discretions shall seem meet. The Fe∣offees for 80 l. Lease for 99 years to begin after the Death of R. G. and his Wife, to

three, one whereof is Lessor of the Plain∣tiff; it was found at the time of the Sale, that all the Debts were paid. Per Cur', the Fee being given away from the Heir of the De∣visor, Priority of Title is a sufficient posses∣sion,* 3.173 unless some Title be found for the De∣fendant; and primer Possession is good where neither Party hath Title; and in this Case the Lease was adjudged void, the Tru∣stees not being enabled to sell farther than to satisfie Debts.

In Wallis's Case,* 3.174 Stiles Rep. 291. Special Verdict was on a Copyhold-custom, the pri∣mer Possession will make a Disseisin, if 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 Te∣nants, and then the primer Possession by the Defendant will make a Disseisin, and Judgment pro Quer'.

In Ejectment prior Possession is a good Ti∣tle against the King's Presentation,* 3.175 but not so in a Quare Impedit; for there the Incum∣bent ought (altho' Defendant) to make a Title against the King's Presentation with∣out 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 suffi∣cient in either, 1 Keb. 503. Brown and Spencer.

3.* 3.176 The Special Verdict is good, si con∣stare poterit, that it is the same place and the same Land in the Declaration mentioned, although it be not found expresly; and al∣though the Jury find not that it is the same Land in the Declaration mentioned, yet if they find the Entry and Ejectment accord∣ing to the Declaration, it is sufficient; and therefore the Mistake of a Letter, or Addi∣tion of a Word shall not hurt the Verdict, si constare poterit, &c. Siderf. p. 27. Hoare and Dix.

4.* 3.177 In many Cases the special Conclusion of a Special Verdict shall aid the Imperfecti∣ons 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 collate∣ral thing to the Point which they refer to the Court, yet the Verdict is good enough; for all other things shall be intended, ex∣cept 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 Inden∣ture 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 Con∣clusion 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, whe∣ther this be a Revocation of the first In∣denture, and not of the former Uses or Li∣mitation of new Uses, as it ought to be, yet in a Verdict this is good; for their inten∣tion appears.* 3.178 But where the Jury find speci∣ally, and furthermore conclude against Law,* 3.179 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 be∣tween a special Conclusion of the Jury, and Reference to the Court, and a general Con∣clusion and Reference to the Court.* 3.180 A pre∣cise Verdict may make the Declaration good, which otherwise would be ill, as the Decla∣ration is of Lands in Sutton Coefeild; and the Verdict finds the Lands in Sutton Cole∣feild, 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 gi∣ven. But per Cur' the Verdict finding Seisin de infra script' messuag', that is quasi an ex∣press 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 its aided by the finding of the Jury, who find expresly that the Bishop, dedit Tene∣menta infra Script. Cr. Jac. 175. Ward and Walthow, Yelv. p. 101. Mesme Case.

5. The Judges are not bound by the conclu∣sion of the Jury, as in Ejectment on a void the Jury find Lease,* 3.181 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. Tres∣pass was brought against the Lord for Di∣straining. 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 con∣trary to Law, the Court shall reject the con∣clusion, 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 up∣on 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 De∣fendant Guilty of one Moiety, and a Spe∣cial Verdict for the residue, and conclude if the Court shall find him Guilty of all, then &c. The Plaintiff cannot have Judgment up∣on

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.* 3.182 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 agree∣ment to have some part of it back again, were sufficient upon a Condition to defeat the Estate of a Stranger: The Court regard∣ed 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 up∣on performance of a Condition,* 3.183 by Pay∣ment of Money by Sir J. P. to one W. but yet, in making up their Verdict, they had given the Possession to the Plaintiff by Lease, and laid the Entry upon him by W. without any Title under Sir J. P. but that was included and so not regarded, Hen. 55. 262.

But if the Jury conclude upon the Ge∣neral, whether the Defendants Entry were lawful or not, which is all one, as if they had referr'd to the Court whether he be Guilty or not; this depends upon all the Points of the Verdict indifferently, that may prove him Guilty or Not guilty, Hob. 262. So is Castle and Hobb's Case, Cro. Jac. 22. The Verdict was on the passing by Let∣ters Patents, and the Jury found, that if they were good Letters Patents, then for

the Defendant, otherwise they found for the Plaintiff, and they find no Title for the Plaintiff: But it is intended, there is a suf∣ficient Title found for the Plaintiff, unless by this Patent it be defeated and avoided; so that if the Jury be satisfied, that the Plain∣tiff hath any good Right by any other man∣ner of Title, the Court ought not to doubt thereof.

How, and in what Cases Special Verdicts shall be taken by Intent or Presumption, and what things shall be supplied.

I Devise all those my Lands in Shelford cal∣led Somerby, to W. in Tail remainder over, and it is not found per Verdict, that those Lands in the Action are called Somersby. But per Cur. for as much as the contrary is not found, it shall be intended, that he had not other Lands in Shalford, than those which were called Somersby, tho' that name be not at first given them; for it was, I Devise all my Lands in Shalford to his Wife for Life, and the remainder in Tail prout ante, Co. Eliz. 828. Peck and Channel.

It shall be intended, that the Reversion continues in the Party, as if a Special Ver∣dict find that A. was possest for years of Land, and that the Reversion in Fee was in B.* 3.184 and that A. Devise the Term to C. after the Death of M. whom he makes his Execu∣tor, and dies, and M. enter, and during his Life C. after releaseth his possibility to B. and it is not found, that the Reversion con∣tinued

in B. at the time of the Release; yet it shall be intended to continue in him in a Verdict, it being found to be once in him by the same Verdict before, p. 13 Car. 1. B. R. Johnson and Trumper.

A Life shall be intended to be in being tho' not found,* 3.185 as was Fretzvil and Mol∣lineux's Case. If the Jury find the Title of the Plaintiff to be under one, who was Lessee for Life, and they find the Estate for Life, but do not find the Tenant for Life is alive; The Life shall be intended and supplied, the conclusion and reference to the Court being upon other matter. Special Vedict in Ejectment found, that J. J. was deprived by the high Commissioners of a Benefice, and it is found in this manner, That such persons authorizati virtue Literar' Patent' Eliz. Reg.* 3.186 and it is not found, that the Letters Patents were under the great Seal; yet this is good, and shall be intended in a Verdict, Tr. 13 Car. 1. B. R. Allen and Nash.

In Ejectment, The Verdict was on a Pro∣viso of Revocation of uses, That it should be lawful for the Covenantor, being in per∣fect health and memory, under his Hand and Seal, and by him delivered in the pre∣sence of three credible Witnesses, &c. It was agreed, That tho' the Verdict do not find the Covenantor was in perfect health and memory; yet that was well enough, for it shall be presumed, except the contrary were shewed,* 3.187 and so for the presence of credi∣ble and sufficient Persons. Otherwise, if it were in the presence of sufficient subsidy Men, Hob. 312. Kibbet and Lee.

If the Jury find that J. S. was seised in Fee, and devised the Land to J. D. altho' they do not find the Land was held in Soc∣age, yet that is good; for this shall be in∣tended, it being a Collateral thing, and it being the most common Tenure.

If the Jury find that J. S. was seised in Fee,* 3.188 and made his Will in haec verba, and that he afterwards died; altho' they do not find he died seised, yet it shall be intended, he died seised, and so good. But

If the Jury find the Words of the Will, and yet do not find the will, the Verdict is not good

And if the Jury find a Bargain and Sale, and a Fine,* 3.189 and do not mention Inrolment or Proclamations, it shall not be intended, Hob. 262.

In Ejectione Firme, the Verdict finds that E. D. the Lessor, and Conisor was seised in Tail of the Manor of B. at the time of the Recognizance, and that this Manor was delivered in Extent; but he doth not say that the Lands in the Declaration were parcel of the said Manor, and so its not found,* 3.190 that this Land was delivered in Ex∣tent, and then the Defendant had no Title. Per Cur. its not material, it shall be intended in a Special Verdict; otherwise there is no Cause of a Special Verdict, Cr. Car. 458. Cleve and Vere.

It was objected in Corbet and Stones's Case, p. 1653. B. C. The Jury find that after a Fine levied, and before the Ejectment, the inter∣est of M. C. F. B. and K. B. of the Lands in Question, came to the Lessor of the

Plaintiff,* 3.191 but shews not how. But per Cur. it is good enough, for when the Jury finds the interest comes to the Lessor, the Court intends all Circumstances, that shall conduce to that fact; for the Court doubts not when the Jury doubts not, 4 Rep. 65. Full∣wood's Case.

The Jury find that J. C. came before the Recorder of London,* 3.192 and Mayor of the Sta∣ple, and acknowledged himself to T. R. in 200 l. Exception was taken, that there was no finding of any Statute there; for it was found, that this was secundum formam Statuti, and that it was by Writing. But per Cur. its good enough, for all Circumstances shall be intended Raym. 150.

And there is another Rule in our Books persuant to this last,* 3.193 in a Special Verdict the Circumstances shall be intended, or in a Special Verdict, the Circumstances of e∣very thing need not to be so strictly found as in pleading. As in Ejectment, the Jury found he delivered the Lease upon the Land, but found not, that he had entred and claimed, Cr. Eliz. 167. Willis and Jer∣min. And in Goodall's Case, 5 Rep. it was resolved, That all matters in a Special Verdict shall be intended and supplied, but only that which the Jury refer to the Consideration of the Court.

Also in Molineux's Case, Cr. Jac. 146. It was excepted to a Special Verdict, That the Life of B. who was Tenant for Life,* 3.194 and the Lessor in the Action was not found: But per Cur. it shall not be intended that she is dead, unless it been found. And in a Spe∣cial

Verdict, all necessary Circumstances shall be intended, unless found to the con∣trary:* 3.195 But some things the Court shall not intend, as in Sadler and Draper's Case, Sir Thomas Jones, p. 17. where the Case was whether the next of the Blood being of the half Blood (i. e. whether the Brother of the half Blood of the Mother of an Infant, shall be Gardian in Socage of Land, by dis∣cent on the part of the Father,) Cro. Eliz. 825. But because the Verdict did not find that the Lessor of the Plaintiff, who claims to be Gardian in Socage, was proximus in sangine à quel, &c. that the Court shall not intend it, and so no Title found pro Quer. Ideo nil. cap. per Bill.

If the Jury find a Special Verdict (viz.) A. deviseth his Lands to his Executors quo∣usque they shall Levy such Money, or his Heirs shall pay to them the said Sum, and conclude upon the matter si, &c. but they do not find the Heir had not paid the Money.* 3.196 This quousque the Heir pay the Money, is parcel of the Limitation of the Estate which ought to have been found: Otherwise, the Court who is to Judge upon the whole matter, shall not intend it, Tr. 19. Jac. B. R. Langley and Pain. But if in a Special Verdict, the Jury find J. S. was sei∣sed in Fee of Land, and made his Will, and by it deviseth all his Estate to B. paying Debts and Legacies, and refer to the Court the matter in Law, (viz.) whether a Fee passeth by this, but find not that B. had paid the Debts and Legacies; yet this is a good Verdict, because it is a Condition,

properly and not a Limitation, Tr. 1651. Johnson and Kerman; yet if the Verdict find that J. S. was seised in Fee of Land, and possest of certain Leases for years of other Lands, and by his Will deviseth his Leases to J. D. and after deviseth to his Executors all the Residue of his Estate, Mortgages, &c. his Debts being paid, and his Funeral expences discharged; this was not a perfect Verdict, the matter in Law referred to the Court being, whether the Executors had an Estate in Fee by this Devise in as much as it is not found, that the Debts were paid, &c. which is a Condition prece∣dent so as the Executors cannot have it till the Debts paid, and venire de novo granted, Hill. 10 Car. 1. B. R. Wilkinson's Case, Vide 2 Leon. 152. Allen and Hill's Case, Condi∣tion must be punctually found.

To this purpose it is laid down often in our Books as a Rule.* 3.197 That if the Jury find the substance of the Issue it is suffi∣cient, as in Ejectment of a Manor: If the Jury find there were no Freeholders, and so it is no Manor in Law; yet it being a Manor in Reputation, and so the Tenants pass by the Leases, therefore this Verdict is found for him who Pleads the Lease of the Manor, for the substance is whether Bar∣gain and Sale, de modo irrotulat' and not said in six Months, its good in a Verdict but not in a Plea, 3 Keb. 180. vide supra Corbet and Stones's Case.

If in Ejectment a Lease is pleaded of a Manor, &c. and the Issue is quod non dimisi•• manerium, and the Jury give a Special Ver∣dict,

That there were not any Freeholders but diverse Copyholders of the Manor, and that it was known by the name of a Manor, tho' it was not any Manor in Law for de∣fault of Freeholders; and tho' this was al∣ledged in pleading to be a Manor,* 3.198 which pleading is made by learned Men, and tho' this was in an Action adversary and not amicable; yet, for as much as the Issue is triable by the Lay-gents, and in truth the Tenements in which, &c. pass by the Lease; the Verdict is found for him that Pleads the Lease of the Manor, for the substance of the Issue is, whether it were demised or not, Vines and Durham's Case cited, 6 Rep. 77. in Sir Moyle Fincheb's Case.

8.* 3.199 It is a Rule in Law, in such Actions in which one cannot Plead, there the mat∣ter to be pleaded shall be found by Ver∣dict, and this well; but where the Party may Plead there the same is to be pleaded by him, 1 Bulstr. 166.

The Jury may find a Warranty being give in Evidence, for in Ejectment from Trespass, and in Act on the Satute of 5 R. 2. cap. 7. A Warranty is not to be pleaded (or other personal Action:) The nature of a Warranty, and to have benefit thereby, is to be by way of Voucher and Rebutter in a real Action; and must Plead or lose the benefit of it, but in personal Actions Colla∣teral Warranty cannot be pleaded by way of Bar; yet it may be given in Evidence to a Jury, and the same is to be found by Verdict of the Jury, Vid. ibid. Heywood and Smith.

9. If any thing be omitted in the Decla∣ration, or if more is put in the Declaration than is found by the Jury, if it makes a material variance between the Declaration and the Verdict, the Action shall abate as if a Declaration in Ejectment be of a Lease of three Acres; a Lease of a Moiety will not Warrant the Declaration: But if the variance be by way of Surplus or Defect, if it be not material in the extenuation of the Action, or Damages, Action will lye.

10.* 3.200 The Jury may give a Verdict by pre∣sumption, as to find Livery in respect of long Possession; but if they find the mat∣ter Specially, the Court will not adjudge this a Livery, 1 Rolls Rep. 132.

11. A Verdict that finds part of the Issue, and nothing for the residue is sufficient, Vide postea.

12. Fraud ought not to be presumed, unless it be expresly found, 2 Rep. 25. 10 Rep. 56. Cr. Car. 549. Crisp and Pratt.

Where and in what Cases Entry must be expres∣ly found or not, and of the force of the words prout lex postulat.

In Horewood and Holman's Case, 2 Bulst. 29. Lands are given to the use of a Man and his Wife, the Remainder to the Heirs of the Body of the Husband; the Husband makes a Feoffment in Fee with Warranty, and takes back an Estate to him and his Wife for their Lives, the Remainder over to make a Remitter to the Wife, there ought to be

an Entry,* 3.201 and no new Entry is found by the Special Verdict to be by the Husband, but only prout lex postulat. The Court ad∣vised a new Tryal, and to amend the Spe∣cial Verdict, and to find the Entry of the Baron and Feme.

The time of the Entry of the Plaintiff is sometimes material, as in Fort and Berkley's Case.* 3.202 Per Cur. In that Case which way so∣ever the Law had been taken, Judgment could not have been given for the Defen∣dant. There was a Lease made to Godolphin in Reversion, under whom the Plaintiff claims. Chersey the Lessor of the Plaintiff did Enter upon the Possession of Berkley the De∣fendant, but when he did Enter does not ap∣pear; then the Case is, Berkley was in Posses∣sion. If the Lessor of the Plaintiff enter'd before the Term began, he was a Disseisor as it was, Dier 89. Clifford's Case. But its said he was possest prout lex postulat,* 3.203 as so he was of the Reversion too, it does not appear but that he was a Disseisor and so continued, Car∣ters Rep. 159, 160.

If the Title appear to be in a Stranger, they must find an Ouster made to him who had the Right.* 3.204 And therefore in Ejectione Firme, If the Jury find a Special Verdict, being matter in Law upon a Lease for years, reserving Rent upon Condition, &c. but no Title is found for the Plaintiff nor De∣fendant; but it is only found, that the Les∣sor of the Plaintiff being a Stranger Enters into the Land and Leaseth this to the Plain∣tiff, by which the Plaintiff was possest prout lex postulat, until the Defendant entred and

ejected him; this is not a good Verdict, the Title appearing to be a in Stranger, without any actual Ouster made to him who had the Right, 2 Rolls Abr. 699. Bland and Inman.

In an Ejectione Firme, the Jury find a Spe∣cial Verdict, and find Special Matter in Law, whether J. S. had right to the Land, upon which the Court adjudged, That he has right to the Land. But they find far∣ther,* 3.205 That J. D Entered into the Land up∣on J. S. and was thereof seized prout lex postulat, and made the Lease to the Plain∣tiff, and the Lessee was by force of this pos∣sessed, and it is not found that J. D. dis∣seised J. S. and for that, upon this Verdict shall not be intended that J. D. oustred J. S. and disseised him, and then the Entry of J. D. and his Lease is void, and so an Action does not lie against a Stranger, who had nothing in the Land, as was Hit∣chin and Glover's Case.

In Ejectione Firme, by the Lessee of a Colledge, if the Jury find a Special Verdict in this manner, (viz.) That the Colledge let this to A. upon Condition, and found a Special Matter in Law, whether the Con∣dition be broken, and that the Colledge supposing the Condition broken by their Bayliff entred,* 3.206 and let this to the Plaintiff, this is not a good Special Verdict, without finding of a command given by the Col∣ledge to the Bayliff to Enter, to be by Deed, for otherwise it is not good, 2 Rolls Abr. p. 700. Dumper and Simms.

A. was seised and demised to his Execu∣tors, the Lands in Question for the perfor∣mance of his Will, till the Executors levy 100 Marks, or until his Heirs pay to them 200 Marks, and that the Executors after his Death entred and were possest prout lex po∣stulat,* 3.207 and being so possest granted to the Plaintiff, who entred and was possest till the Ejectment. This is uncertain, because it is not found that the Heir had paid the Money,* 3.208 for they say super totam materiam, and to say prout lex postulat, is not an affir∣mation of any certain Possession, Palmer 192. Langly and Paine.

Of the Juries finding by Parcels.

It is a Rule:* 3.209 A Verdict that finds part of the Issue, and nothing for the residue is insufficient. As in Pemble and Sterne's Case, Raym. 165. The Demise is laid of a Park Mes∣suage 300 Acres of Land, and the Verdict finds only as to parcel, and nothing of the residue for the Plaintiff or the Defendant; the Verdict is void; so is the Rule, 1 Inst. p. 227. A Verdict that finds part of the Issue, and finding nothing of the residue it is insuffi∣cient for the whole, because they have not tried the whole Issue wherewith they are charged, Car. Jac. 113. Ejectione Firme of a Lease of Messuages, 3000—Acres of Land, 3000 Acres of Pasture in D. per nomina of Monkhal. and 5 Closes per nomina. On Not guilty the Jury gave a Special Verdict, (viz) quoad 4 Closes of Pasture containing by Esti∣mation,

2000 Acres of Pasture, that the Defendant was Not guilty,* 3.210 quoad resid. they find the matter in Law; this Verdict is imperfect in all, for when the Jury find that the Defendant was Not guilty of 4 Closes of Pasture containing by Estimation, 2000 Acres of Pasture it is not certain, and it doth not appear of how much they ac∣quit him, and then when they find quoad residuum for the Special matter, it is uncer∣tain what that residue is; a Venire fac' de novo was awarded,* 3.211 Woolmer and Caston's Case. But if the Verdict be of more than declared for, it shall be void for the residue. As Ejectment for him who pleaded all of 14 Acres, and the Jury find Guilty of 20 Acres, 14 Acres, The Plaintiff shall have Judgment for the and the Verdict shall be void for the residue, 2 Rolls Abr. 707. 719. Seabright's Case.

In Ejectment of a Manor, and so many Acres as includes the Manor; the Jury find for the Plaintiff as to the Manor, praeter the Services; and as to the Services Not guilty. And Judgment pro Quer. Here are 2 mani∣fest Errors. 1. When the Court is of a Manor, the Jury cannot find for the Plain∣tiff, for that which is not a Manor; and there is none that brings Ejectment of a Manor,* 3.212 but they also add the Acres that contain it, to the end, that if they prove it not a Manor they may recover according to the Acres, but they must enter it so, but not as here generally of both. 2. The Verdict being as much as the Count, the Judgment against the Plaintiff cannot be in

Misericordia, if it be supposed good. The Court held them to be manifest Errors and assignable by the Defendant, Hob. 108. Latch 61. Cr. Jac. 113. 1 Keb. 110. Hammond and Conisby. But I conceive that is not Law, for in Hammond and Conisby's Case, Ejecti∣one Firme was of a Manor; upon Not guilty, there was a Verdict pro Quer. for the Ma∣nor, and quoad the Services Not guilty. Er∣ror was assigned, because the Verdict is not for the Plaintiff, for the Manor, because as to the Services it is for the Defendant.* 3.213 But per Cur. The last part of the Verdict shall be taken general for the Plaintiff, Sid. 232. Ejectione Firme of a Messuage. On Not guil∣ty, the Jury find the Defendant guilty of 2 parts of the House: It was alledged in Arrest of Judgment, That the Verdict has not found the Defendant Guilty according to the Count, which is of a Messuage an entire thing. Manwood contra: Omne majus con¦tinet in se minus; but if the Declaration had been of 2 parts of a Messuage, and on Not guilty, the Jury had found him Guilty of the entire House, The Plaintiff shall not have Judgment, Savill 27.

In Ejectione Firme of a Messuage, if it be found that a little part of the House is Built by incroachment upon the Land of the Plaintiff, and not the Residue; yet the Plain∣tiff shall recover for this parcel by the name of an House.

It's laid down positive in Ablett and Skin∣ner's Case in Sid.* 3.214 p. 229. that the Verdict may be of fewer parts than in the Declara∣tion:

As on Tryal at Bar in Ejectment the Declaration 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 what is demanded in the De∣claration. It was said the Plaintiff cannot have a Verdict, because the Verdict in such Case ought to agree with the Declaration; but per Cur' the Verdict may be taken ac∣cording to Title; and so it was. But Qu. how the Habere fac' shall be executed.

If the Verdict in Ejectment contain more than the Declaration,* 3.215 the Plaintiff may re∣lease the Damages. Q. if he may release part of the Land, Sid. p. 412.

Ejectione Firme of the Manor of Dale; on Non Culp' pleaded, the Jury find, quoad unum Messuagium parcel'* 3.216 Manerij praedict', guilty; quoad resid Not guilty. It is moved he can∣not have Judgment; the Action is brought of the Manor, and the Jury find him guilty of one House only, so he cannot have his Judgment according to his demand. So De∣labar and Hudlestone's Case. Ejectment of a Rectory, and upon Non culp' pleaded, the Defendant was found guilty of Tythes with∣out the Glebe; and he could not have Judg∣ment, the Glebe being the Principal. So E∣jectione Firme of a Manor, and proves only the Rents, he shall not have Judgment. E∣jectment was of an House, the Special Ver∣dict was, That the Plaintiff was seised in Fee; and if there be several things laid in Ejectione

Firme,* 3.217 as House, Garden, &c. and the Jury find guilty of one only, the Plaintiff shall have Judgment of this. In Delabar's Case it was not found that the Tythes were parcel of the Rectory, and so it differs from this Case. In Ejectione Firme of a Manor and ten Acres, it is no Plea that the ten Acres are parcel of the Manor, aliter in Entry in the nature of an Assise. Adjornatur.

The Jury find the Defendant guilty of one Moiety, and for the other Moiety a Special Verdict, this is no Error; for the Jury may conclude upon the Moiety,* 3.218 for it may be he entred into one Moiety, and not into the other; but if he declares upon the whole, they cannot find him guilty of a Moiety, 3 Bulstr. 229. Milward and Watts. But if one declares in Ejectione Firme upon a Fence made in certain Lands, and he has Title but for a Moiety, the Jury are not to conclude upon the Moiety, for they are not to judge upon this, but the Court.

Where a dying seised or possest, must be found.

A Man by his last Will and Testament devised all his Fee-simple Lands whatsoever to his Brother, on Condition he suffer his Wife to enjoy all his Free Lands in H. du∣••ing her Life, and the Jury found the Testa∣tor had only a Portion of Tythes in H. but they did not find the Testator died seised of the Tythes, which without doubt had been ill upon the Demurrer. And Rolls said, He

would see the Notes by which the Special Verdict was drawn up, if that could help it. For they all agree the Verdict ought to have found the Dying seised, Stiles Rep. 279. Saun∣ders and Rich.

In Ejectione Firme if the Jury find a Spe∣cial Verdict, That J. S. was seised of the Manor of D. in his Demesne as of Fee, of which Manor of Copyholder in the place where, &c. does waste by the cutting down an Oak; and that after J. S. dies, and the Lessor of the Plaintiff being his Cousin and Heir, enters into the Manor, and into the Place where, &c. for the said Forfeiture, and was of this seised in his Demesne, as of Fee, and concludes, si super totam materiam, &c. this is not a good Verdict, because it is not found that J. S. died seised of the Manor, and that this discended to the Lessor as his Cousin and Heir; for it may be J. S. alien∣ed the Land, and that the Father of the Lessor, or the Lessor himself might repur∣chase it, and that he was also Cousin and Heir to J. S. for although it be in a Verdict, yet it shall not be intended, that the Fee continued in J. S. at his death, and that he died seised thereof without finding of it, P. 1 Car. 1. Cornwallis and Hammond.

Of Uncertainty in Special Verdicts.

• As to Persons.
• As to Acres and Parcels.
• As to the Place or Vill.
• As to time.

As to Persons.

One deviseth all his Lands to E. his Wife for Life, the Remainder to F. his Daughter in Tail, the Remainder to the eldest Son of William his Brother in Tail, Remainder o∣ver. E. enters, F. dies without Issue; they find Gertrude Cousin and Heir to F. who le∣vied a Fine, but they find not Gertrude was Heir to the Devisor;* 3.219 and it may be althô F. was the Daughter, the Devisor might have a Son, or that she was Heir to him by a second Wife, yet that Exception seemed not valid, Cr. El. 642. Hemsley and Price. So in 3 Rep. Sir George Brown's Case, Anthony is found Son but not Heir, and yet without his being Heir, the Plaintiff had no Title: And yet in Cymbal and Sand's Case, Cro. Car. 391. Gimlet and Sands, the Court seemed to be of Opinion, That tho' the Jury found that Humfrey had Issue by Hebell his Wife, John, unicum filium suum, that not finding that he was Heir (it was in case of his be∣ing Heir to a Warranty collateral) was not good; for he might have elder Sons by an∣other Venter, or there might be an Attain∣der, or the Warranty might be discharged

or released io his Life-time, 2 Rolls Abr. 701. mesme Case.

The Jury found a Special Verdict on a Will, in which they found A. had Issue two Sons B. and C. and do not find which of them was the elder, and which the younger, which is material in the Case. This Verdict is not good; for tho' B. is first named, yet it doth not appear by this that he is the eldest Son, M. 20 Jac. B. R. Peryn and Pearse.

Uncertainty as to part of a House.

The Defendant pleads Not guilty;* 3.220 the Jury find him not guilty for part, and guilty de tanto unius Messuagij in occupatione, &c. quantum stat super Ripam. Per Cur' the Ver∣dict is insufficient for the Uncertainty; for tho' the Certainty may appear to the Jury, yet that is not enough; the Court ought to give Judgment, & oportet quod res deducatur in judicium.* 3.221 Had they found him guilty of a Room, it had been good. So if he had been found guilty of a third part, for of them the Law takes notice. And an Ejecti∣one Firme was brought for the Gate-house at Westminster, and the Jury found the Defen∣dant guilty for so much as is between such a Room and such a Room, and it was adjudg∣ed good,* 3.222 Marsh. Rep. 47. Juxon and An∣drews.

As to Certainty of Acres.

Ejectione Firme was brought of 400 Acres of Land;* 3.223 and the Jury find the Defendant quoad all besides three Acres parcel tenemen∣torum praedictorum Not guilty;* 3.224 and quoad the three Acres, they find special matter; and that G. A. the Lessor let the aforesaid three Acres to the Plaintiff, and that he was possessed; and that the Defendant ejected him out of the three Acres,* 3.225 parcel' tenemen∣torum praedictorum, and they did not find the Ejectment of the aforesaid three Acres, &c. and it may be the Ejectment was of other three Acres; and for this Cause per totam Curiam held ill, Cr. El. 642. Hemsley and Price.

Ejectment of 5 Acres, if the Jury find the Defendant guilty in 8 Perches de terre parcel' tenementorum praedictorum, it's a void Verdict, because uncertain, and no Execu∣tion can be made of Pieces, 2 Rolls Abr. 694. Pawlet and Dr. Redman.

And this is the Difference between Tres∣pass and Ejectment: The Plaintiff declares of Trespass in one Acre in D. and abutts it East, West, North and South. Upon Not guilty the Jury finds the Defendant guilty in dimidio Acrae infra script' the Plaintiff shall have Judgment; and so if they had found but one Foot of the Acre. And it sufficeth to be found in one Moiety of the Acre bound∣ed in this Action, where Damages are only to be recovered. But if it were in Ejectment

the Verdict had been ill;* 3.226 for it is not certain in what part the Plaintiff shall have his Ha∣bere fac' possessionem, Yelv. p. 114. Winckworth and Man.

In Ejectione Firme the Plaintiff declares of a Messuage, 3000 Acres of Land, 3000 Acres of Pasture in D. per nomina of the Ma∣nor of Monkall, and 5 Closes per nomina, &c. The Jury give a Special Verdict, quoad four Closes of Pasture containing by Estimation 2000 Acres of Pasture, that the Defendant was not guilty; quoad residuum they find the Matter in Law. This Verdict is imperfect in all; for when the Jury found the Defen∣dant was not guilty of four Closes of Pasture containing by Estimation 2000 Acres of Pa∣sture,* 3.227 it is uncertain, and doth not appear of how much they acquit him; and then when they find quoad residuum for the special Matter, it is uncertain what that Residue is; so there cannot be any Judgment given. And a Venire fac' de novo was awarded, Cro. Jac' 114. Woolmer and Caston.

In Ejectione Firme de septem Messuagiit sive tenementis,* 3.228 and Verdict pro Quer', it's ill for the Uncertainty, and the Verdict doth not help it. And Hales refused to let the Jury find for the Plaintiff for the Messuages, and Non culp' for the Tenements. But per Twis∣den had it been de uno Messuagio sive Tene∣mento vocat' The Black Swan, it had been good, because the last part makes it certain, Sid. 195. 2 Keb. 80. Cro. El. 186.

On Special Verdict in Ejectment the Case was,* 3.229 the Declaration was of several Messua∣ges in the several Parishes of St. Michael, St.

James, St. Peter and St. Paul, and that part of the Premisses lie in the Parish of St. Peter and St. Paul, and that there is no Parish cal∣led the Parish of St. Peter, nor none cal∣led the Parish of St. Paul. Per Cur' the Copulative (Et) shall be referred to that which is real and hath existence, ut res magis valeat; not to make St. Peter's one Parish and St. Paul another, but to make them both one Parish, and the Words, several Parishes, are supplied by the Parishes before mentioned, as 6 Ed. 3. Praecipe of 10 Acres in A. B. and C. there the Lands must lie in every one of the Vills; but if the Praecipe were de Mane∣rio & de decem Acris in A. B. and C. there it would be well enough, tho' the Manor lay elsewhere, provided that ten Acres lay with∣in the Vills aforesaid, for then the last words are satisfied by the ten Acres, Hardr. 1. 330. Ingleton and Wakeman.

Yet in Thomas and Kenn's Case, P. 38 El. B. R. it's said in Dyer ult. Edit. in margine 34. b. Ejectione Firme upon Title of Land of Sir Hugh Portman; the Count was of an hun∣dred Acres in D. and S. and Non culp' plead∣ed, the Jury found the Defendant ejected him of ten Acres only, and shews not them in Certain, and adjudged a good Verdict, and the Plaintiff had Judgment.

It's a Rule laid down,* 3.230 1 Rolls 784. Rhe∣thorick and Chappel's Case, where-ever an A∣cre is but found certain, a man may release all the rest that is uncertain, and nothing is more usual.

Of uncertainty in a Special Verdict, in reference to the Place or Vill.

Ejectione Firme of 30 Acres of Land in D. and S. The Defendant was found Guilty of 10 Acres, and quoad residuum Not Guilty.* 3.231 And it was moved in Arrest of Judgment, That it was uncertain in which of the Vills those Lands lay; and therefore no Judg∣ment can be given: Sed non Allocat. and ad∣judged pro Quer. For the Sheriff shall take his Information from the party, for what 10 Acres the Verdict was. So is Siderf. 75. If one Dcclares for a 100 Acres of Land in two Vills, and the Jury find the Defendant Guilty, this is good without saying how many Acres lie in the Vill, and how many in the other: And the Sheriff ought to take notice of this at his Peril, in making of Ex∣ecution. And so in Dence, and Dence his Case: It shall be intended, that every Acre of Land named in the Declaration lies in both Vills, for so much is presumed by the Declaration, and the Venire from both Vills, Cro. Car. 467. Portman and Morgan, Sid. p. 75. Yelv. 228. Dences's Case.

Trin. 43. El. Meredith and Brown. It was adjudged in B. R. that in Ejectione Firme, sup∣posing the Ejectment of 10 Acre, and the Jury find the Circumstances but of 4 Acres, the Plaintiff shall recover these 4 Acres. But Dame Baskervile's Case was in 39 Eliz. Assize was brought of a Park containing 60 Acres, and the Jury ••ound the Disseis••

but of 30 Acres, and adjudged against the Plaintiff for all. But note, the Park was entire, Dyer 15. b.

As to time.

It was a great Case between Vernon and Gray. The Ejectment was supposed the first of May; and the Jury found the Ejectment to be circa the first of May. It was held not good, Godb. 125. cited in Yarran and Bradshaw's Case.

Of a Verdict in other Leases, or Date than is declared upon.

The Plaintiff Declares of a Lease by two Copyhold-Lords,* 3.232 Lessors of the Plaintiff for a Term certain; and the Jury find a De∣mise generally, and do not find the Lease whereupon the Plaintiff Declares, and it may be any other Lease which might not be determined at the time of the Verdict, but is now since; and the Ejectment is only found out of this,* 3.233 and not on the Lease de∣clared on, 19 Car. 2. B. C. Lenthal and Thomas.

In Ejectment, if the Plaintiff Declares of a Lease for years made the first of May, to commence at the first of St. Michael, then next ensuing (which is now past) if the Jury find that the Lease was made the first of June, or at any other Day before the Feast of S. Michael, This is found pro Quer. For the

Day of the making is not material, so that it was made to commence at a Day to come. By Foster its the common practice, 1 Rolls Abr. 704.

But if in Ejectment the Plaintiff Declares of a Lease for years in Possession such a Day, and the Jury find the Lease to be made at another Day; this shall be found against the Plaintiff, because it is not the same Lease. So it is,

If a Man in an Ejectione Firme, Declare of a Lease made the 5th of May, 10 Jac. Habend. from the Annunciation before for three years. And the Jury found the Lease to be made the 15 Day of May, 10 Jac. Habend. from the Annunciation before (be∣ing the same Lady-day) for three years: This is found against the Plaintiff, because this was a Lease in Possession at another Day (scilicet 15 of May) than the Plaintiff had counted, altho' it had the same Commence∣ment. But in Musgraves's Case it was, The Lease in the Declaration was a Lease made the 5 of May, 10 Jac. Habend. from the Feast of the Annunciation then last past for 21 years extunc scilicet, from the Feast of the Annunciation next ensuing. But the Lease found by the Jury, was a Lease made the said 5 of May, 10 Jac. per Indent. bear∣ing Date the said 5 Day of May, Anno 10 Jac. Habend. from the Feast of the Annun∣ciation beate Marie Virginis tunc ultimo pre∣terito pro termino 21 annorum prox sequen' dat' dicte Indenture. It was adjudged pro Quer. and so affirmed in a Writ of Error. But I conceive this Case is best reported by Allen.

The Plaintiff declared, That J. S. the 5 of May, 10 Jac. demised a House to him, Habend. from the Feast of the Annunciation last past, for 21 years extunc prox. sequend. and the Defendant the same 5 Day of May ejected him. And upon Not Guilty the Jury found, that J. S. the said 5 of May by In∣denture bearing Date the 4 of May, demi∣sed the House to the Plaintiff Habend. from the Feast of the Annunciation last past, for 21 years next ensuing the Date hereof ful∣ly to be compleat and ended. And upon the Verdict the Plaintiff had Judgment, which was affirmed in Scaccario. The Term began from the Feast of the Annunciation, in Computation of the 21 years, and on the 5 of May, in point of Interest, Allen p. 77.

In Pope and Skinner's Case,* 3.234 The Plaintiff Declares of a Lease made to him the 30 Day of March, 11 Jac. Habend. from the Feast of the Annunciation next before for a year. The Defendant Traverseth the Lease modo & forma. The Jury find a Lease to the Plaintiff on the 25 Day of March for one year, from thence next ensuing: This is a∣gainst the Plaintiff, for being in Ejectione Firme, he Demands and Recovers the Term, and therefore must make his Title. Aliter, in Replevin, Hob. pag. 73. Pope and Skin∣ner.

Ejectment of a Lease made the 12 of De∣cember, Habend▪ à primo die. On Not guilty, The Jury found a Lease made in haec verba, which was dated the 1 of December, Hab.

from henceforth, but delivered the 12 of December. It was objected, That from the Day of the Date, and from henceforth are several Commencements, for the one begins the Day it was Sealed, the other the Day after.* 3.235 But per Cur. They are both one, be∣ing a computation of time from the time past; and both shall be pleaded to begin from the Day of the Date, when the Lease is afterwards Sealed at another Day; and if the Lease be made the 1 of December, Hab. henceforth, the Ejectment may be alledged the same Day. Aliter, If it be à die datus. Pro Quer. Cr. Jac. 258. Lewellin versus Wil∣liams.

Verdict finds,* 3.236 that the Lessor of the Plain∣tiff was seised in Tail of the Rectory, &c. and does not shew the beginning of the Estate Tail, which is the particular Estate. Per Cur. It is an apparent fault, Cr. Eliz. 407. Baker and Searle.

In the said Case where the Party comes in by a Limitation of an Use,* 3.237 the Verdict saith, virtute cujus dimissionis, and it ought to have been & virtute Statut. Per Cur. This is an apparent fault in Substance and Form.

The Issue in Ejectment was, if Julian the Wife of the Defendant was alive at such a time;* 3.238 and the Jury found, that Jenimet the Wife of the Defendant was alive at such a time. Per Cur. They shall not be adjudged one and the same Person, without finding also by the Custom of the Country, that Women baptised by the name of Julian, have beenalso called Jenimet, Moor 411. No. 560. Huntbach and Shepard.

Verdict as to Baron and Feme.

In Ejectione Firme against Baron and Feme. On Not guilty pleaded, and a Venire fac' granted, the Jury found the Wife Note guilty, and found a Special Verdict as to the Hus∣band,* 3.239 which Special Verdict is afterwards adjudged insufficient by the Court. A Ve∣nire fac' de novo shall be awarded for both, as well for the Wife as the Husband, and upon this new Writ the Wife may be found Guilty, because the Record and Issue is in∣tire; and for this their Verdict is insuffici∣ent in all and void, 2 Rolls Abr. 722. Langly and Pain.* 3.240 So in Swan's Case, Stiles 412. E∣jectment against Baron and Feme, and the Feme is found Ejector by the Verdict, and nothing is found concerning the Husband, and a Venire fac' de novo was awarded, un∣less they will agree to amend the Verdict ac∣cording to the Notes,

Where, and in what Cafes Special Verdicts may be amended.

Where a Special Verdict is not entred ac∣cording to the Notes,* 3.241 the Record may be amended, and made agree with the Notes at any time, tho' it be 3 or 4 Terms after it is entred, 4 Rep. 52. 8 Rep. 162. Cr. Car. 145.

And where a Verdict is certainly given at the Tryal, and uncertainly returned by the Clerk of the Assizes,* 3.242 &c. the postea may be amended, upon the Judges certifying the truth, how the Verdict was given, Cr. Car. 338.

The Plaintiff was Non-suited at the As∣sizes,* 3.243 for default of the Warrant of the Ju∣stices to try the Cause, (viz.) for not confes¦sing Lease Entry and Ouster, and prayed that the Non-suit might not be Recorded, which the Court granted, and an Alias Distringas, 1 Keb. 508. Pits and Viner, Cro. Car. 203. Aquila Wicke's Case.

If the Plaintiff makes Title upon a De∣mise made by Tho. Bill and Agnes his Wife, and the Parties are at Issue, and the Record of Nisi prius was entred by the Clerk, that the said Tho. Bill, and Anne his Wife made the Demise,* 3.244 &c. so that the Record of Nisi pri∣us differs from the Roll; this shall not be amended, for if the Record should be a∣mended, the Jury should be attaint, in as much as they found a Lease made by Tho. Bill and Agnes his Wife; and peradventure this Lease will not prove a Lease, by Tho. Bill and Anne his Wife, 1 Rolls Abr. 202. King and King.

CHAP. XIII.

Where the Defendant shall have Costs, and Da∣mages. How the Plaintiff may aid him∣self by Release of Damage. Executor not to pay Costs. Lessor of the Plaintiff to pay Cost. Where Tenant in Possession liable to pay Costs or not. Feme to pay Costs on Death of her Husband. Infant Lessor to pay Costs of the Writ of Enquiry. The Entry. Writ of Error Lies upon the Judgment, before the Writ of Enquiry, and why. Writ of Enqui∣ry how abated.

The Jury are to find Costs and Damages in Debt, Trespass, Ejectment, &c,

IF the Plaintiff mistake his Declaration,* 3.245 the Defendant shall have Costs. The Plaintiff may relinquish his Damages, where part of the Action fails, and take Judgment for the other.* 3.246 And so is the Rule, If part of the things Demanded in this Action are well demanded, and part of the things de∣manded are not well demanded, and Ver∣dict is given for the Plaintiff for the whole, and entire Damages are given, The Plaintiff may release all the Damages in that which is not demanded, and pray Judg∣ment for the Residue; and this shall aid Error if Judgment be given accordingly. As in Ejectione Firme of a Messuage, Cottage and Tenement, if it be found for the Plain∣tiff, and entire Damages given for the

whole, because Ejectione Firme does not lie of a Tenement, the Plaintiff may release all the Damages, because it is entire, and have Judgment for all the Land saving the Tenement; and this shall not be Erroneous. So in Ejectment of Land, and de libertate Pischarie, for libera Pischaria, which is not good, the Plaintiff may Release all the Damages, and have Judgment for the Land only, altho' he cannot be said properly to Release Damages, as to the Pischary where none were, Godb. pag. 354. No. 439. 1 Rolls Abr. 786. Clive and Vere. 1 Rolls Abr. 784, 786. Retorick and Chappel.

Ejectment was for Entry into a Messu∣age sive tenementum, and 4 Acres of Land to the same belonging. As to the Messuage sive tenementum, The Declaration is uncer∣tain, and if the Damages are Released,* 3.247 the Costs are gone also. It is uncertain to which the 4 Acres belong, i. e. to the Mes∣suage or Tenement. But per Cur. as to the 4 Acres its certain enough, and the words (to the same belonging) are merely void, 3 Leon. p. 228. Wood and Pain.

In Ejectment Judgment is against the De∣fendant who dies,* 3.248 and his Executor brings a Writ of Error and is Non-suited. He shall not pay Costs; an Executor is not within the Statute for paying of Costs, Oc∣casione dilationis, Mod. Rep. 77.

In Ejectment against 2. A. B. they pray∣ed to be made Defendants, and were so, confessing Lease, Entry and Ouster, and at the Tryal A. confessed so much as was in his Possession for certain; but B. would not

proceed with him, and the Plaintiff was Non-suit against both. He that tried it prayed Costs, which the Court granted, but they must joyn in the Suit of Execution for Costs, 2 Keb. 219. Sir Cyril Wych's Case.

The Lessor of the Plaintiff in Ejectment shall be liable to Costs,* 3.249 the Lease being made by Baron and Feme; on his Death she is liable as well as other Joyntenant Sur∣viving, 1 Keb. 827. Morgan and Stapel's Case.

The Lessor of the Plaintiff by several Rules of Court on Demand,* 3.250 ought to pay Costs upon the Insufficiency, or Skulking of the Plaintiff in Ejectment, 1 Keb. 17.

The Lessor of the Plaintiff is liable to pay Costs (tho' he shall never be forced to give Security for them) but the Lessor of a Tenant in Possession is not liable to Costs, because tho' he may come in gratis and defend his Title,* 3.251 yet the Tenant in Posses∣sion, is only liable to pay Costs by the Law. But only by the Course of the Court, unless the Tryal be by the Lessors means brought to the Bar, and then he shall never have a second Tryal at Bar, before he hath paid the Costs of the former Tryal; but yet the Court for Non-payment of Costs, will not hinder proceedings in the Country. Per Cur. 1 Keb. 106. Latham's Case.

Note,* 3.252 Upon a Judgment against his own Ejector in defalt of confessing Lease, Entry and Ouster according to Rule of Court, with∣out Special Rule no Costs shall be paid, by H. The Tenant in Possession that made the de∣falt, &c. Contra, upon Tryal had against H.

because the Plaintiff hath the Benefit of the Suit, viz. Judgment against his own Ejector, whereby he may recover the Possession, 1 Keb. 242.

Verdict was for the Defendant,* 3.253 and the Plaintiff to save his Costs, alledged, That the Venue was misawarded, and that there was a Fault in the Declaration; but resolved per Cur' the Defendant shall have his Costs, 2 Rolls Rep. 327: Pritchard and Reynell. Pal∣mer 365. mesme Case,

The Plaintiff in Ejectment was nonsuited,* 3.254 which was recorded, and the Defendant sued for Costs upon the Stat. 4. Jac. c. 3. The Plaintiff alledgeth insufficiency in his own Declaration to avoid Costs upon the Words of the Stat. That in Ejectione Firme and eve∣ry other Action where the Plaintiff might re∣cover Costs, &c. If it had been found for him, that then upon Nonsuit, &c. in every such A∣ction the Defendant shall have Judgment to recover Costs against him; and the Plaintiff pretends in such Action he cannot recover where the Declaration is not sufficient. But per Cur' there is no reason the Plaintiff should take Advantage of his insufficient Declara∣tion, Palmer's Rep. 147. Dove and Knapp.

Debt was brought on the Stat.* 3.255 of 8 Eliz. for Costs in an Ejectione Firme, the Plaintiff being nonsuited, supposing the Statute to be made ad Parliamentum tentum 8 Eliz. where∣as the Parliament began Anno quinto, and by Prorogation was held in 8 Eliz. so it ought to have been ad Sessionem Parliamenti tent' Anno octavo Eliz. and ruled to be ill, Cro. Jac. 111. Ford and Hunter.

If no Continuance be entred,* 3.256 then a Dis∣continuance may be entred, and he may re∣cover Costs in Ejectment, 2 Bulstr. 63.

Per Stat.* 3.257 13 Car. 2. c. 11. Nonsuit shall be for want of a Declaration before the end o•• the next Term after Appearance, and Judg¦ment and Costs against the Plaintiff, Stat•• 13 Car. 2. c. 11.

In all personal Actions, and in Ejection Firme for Lands, &c. depending by Origin•••• Writ,* 3.258 after any Issue therein joyned, an•• also after any Judgment had or obtained, there shall not need to be Fifteen Days be∣tween the Teste-day and Day of Retorn o•• any Writ of Venire fac', Habeas Corpus, Juratt' Distringas Jurat', Fiere fac' or Cap' ad sat', and the Writ of Fifteen days between the Teste-day and the day of Retorn of any such Writ, shall not be assigned for Error, Stat. 13 Car. 2. c. 11.

Infant Lessor in Ejectment shall pay Costs 3 Keb.* 3.259 347. Masten and King.

Upon a Verdict against all Evidence the Court will tax Costs, and will not suspend it till a new Tryal, 1 Keb. 294.

If the Defendant, whose Title is concern∣ed in an Ejectione Firme, will not defend his Title to the Lands in Question, and the Verdict do pass against the Plaintiff, the E∣jector may release the Damages, Pr. Reg. 100.

Note, This Rule, as to paying of Costs, if a Man had a Verdict in Ejectment,* 3.260 and Costs taxed, and an Attachment for not paying them; and whereas he cannot procure them

of him who ought to pay them, he sues the same Party for the same thing again in an other Court, and he shews this by Motion, and prays he may not proceed till Costs paid; yet the Court will not grant it, but he ought to resort to the Remedy of the Process of the Court where he recovered for these Costs; and so it is if it was in the same Court for Costs for not going on to Tryal; but if it were for Costs after a Verdict in the same Court, there upon Affidavit of this, it's good Cause to stay the second Tryal for the same thing, unless the Costs of the first be paid, Sid. p. 229. Austin and Hood.

Upon a Tryal at Bar in Ejectment where two were made Defendants,* 3.261 and had entred into the Common Rule; and at the Tryal one appeared and confessed Lease, Entry and Ouster, but the other did not; and af∣ter Evidence given, the Plaintiff was Non-suited, and Costs taxed for the Defendants. Per Cur' both these Defendants are intitled to the Costs, and he that did not appear, might release them to the Plaintiff. But the Court said, If there should appear to be Co∣vin between the Lessor of the Plaintiff and the Defendant, who did appear to release the Costs, they would correct such Practice when it should be made to appear, 2 Ventr. 2. W. & M. Fagge and Roberts.

Berkley had Judgment in Ejectione Firme in C. B. and Execution of his Damages and Costs. Foot brings Error, and the Judgment is affirmed; whereupon B. prays his Costs for Delay and Charges, but could not have them, for no Costs were in such Case at

Common Law. And Stat. 3 H. 7. c. 10. gives them only where Error is brought in delay of Execution, and here tho' he had not Ex∣ecution of the Term, yet he had it of his Cost, 1 Ventr. 124.

Adminstrator brought a Writ of Errorup∣on 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;* 3.262 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 Er∣ror were well brought, in regard the Course of the Common Pleas is not to make up the Judgment, until the Writ of Enquiry be re∣torned. Rolls said, A Writ of Error may be

brought before the Writ of Enquiry be re∣torned in Ejectione Firme, for in that Action the Judgment is compleat at the Common Law before it be retorned; for the Judg∣ment 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 re∣covered, 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 Judg∣ment, 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 com∣pleat 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 Coun∣cil therefore moved for a Certiorari. Rolls, take it, but it will do you no good, for the Judgment is well, Stiles Rep. Glide and Dude∣nu's Case. p. 122. Crook and Sanny. Stiles 127.* 3.263

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 Da∣mages, and Judgment upon it, for the Judg∣ment 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 Pos∣session sans Remedy. So it is if a Man re∣cover 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. New∣ton 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.* 3.264 2. c. 8. by Affi∣davit of Cesty que vie's Death after the Judg∣ment 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 reco∣verable 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 Plain∣tiff, and part against him. How against se∣veral 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,* 3.265 and Bail, 2 Keb. 743.

The Form of entring Judgments in this Action.

In Cr.* 3.266 El. 144. Matthew and Hassel's Case. It was assigned for Error, That the Judg∣ment 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 re∣cover Possession, and the Writ is habere fac' possessionem, 1 Leon. p. 175. mesme Case.

All the Course of Entries,* 3.267 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. Er∣ror 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 allocat••r causa qua supra, Cro. El. 768. and the Court would have affirmed the Judgment, but be∣cause the Plaintiff had not appeared that Term, they caused him to be nonsuited.

In 1 Rolls Rep.* 3.268 51. Error was assigned be∣cause the Judgment in Ejectione Firme in Wales was Quod Def. sit quietus, such Judg∣ment 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 Mor∣ris and Cadwallader's Case.

In Ejectione Firme,* 3.269 if upon Non sum infor∣matus pleaded, Judgment be given, Quod Def. remaneat indefensus, without saying ver∣sus querent', yet its good, 1 Rolls Abr. 772. Fiegot and Mallory.

Ejectment was against several Defendants,* 3.270 &c. 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 Ma∣son.

The Plaintiff shall be in Misericordia but once.* 3.271 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 De∣fandants pro falso clamore for so much as they were acquitted; & pro falso clamore, against the fourth Defendant, sit in Mise∣ricordia. Its good enough, and the course, that the Plaintiff in such Cases be in Mise∣ricordia 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. capi∣atur, 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.* 3.272 And 4 days after the Verdict given, was moved to stay Judgment, a Spe∣cial 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 Judg∣ment presently. But Cur. advisare vult, and on the 19 of April one of the Plaintiffs died, and the favour of the Court shall not pre∣judice; 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,* 3.273 and the other not. The one that is Not guilty dies, The Plaintiff shave Judg∣ment 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.* 3.274 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, E∣jectment 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 na∣ture of a Trespass, and the Feme is charged for her own fact. Per Cur. The Action con∣tinues against the Wife, and Judgment shall be entred against herself, because the Baron was dead.

Ejectment against divers,* 3.275 all plead Not guilty; and divers Continuances were be∣tween 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,* 3.276 as in full Life, Jones 410. Sir John Fitzherbert versus Leech. And

In Ejectment to try the Custom of Co∣pyhold.* 3.277 The Plaintiff was Non-suit, and one of the Defendants being dead. Hales Chief Justices, advised to Enter a Suggesti∣on 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,* 3.278 one dies, hanging the Writ; and the Judg∣ment 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,* 3.279 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.* 3.280 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 de∣pending, and tried at the same Assizes when this Issue was tried, and by Agreement be∣tween 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 is the Party inter∣ested,* 3.281 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.* 3.282 If one brings Ejectione Firme for the whole, having Title but to a Moiety, that i•• 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,* 3.283 Judgment was de integris tenementis, where it ought to have been for a Moiety; The Judgment was given for the whole, and intire Dama∣ges assessed by the Jury. Its Error, Croke Car. 7.

The Declaration was, Qd. per Indentur. di∣misit 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 recu∣peret vers. praefat Def. terminum suum praedict. adhuc ventur' de & in Rectoria horreo & gar∣dino praed.* 3.284 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 Da∣mages 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,* 3.285 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.* 3.286 One of the Defendants at the time of the Judgment, was within Age, and appear∣ed 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 Eje∣ctione Firme, or in any personal Action be∣ing under Age did appear by Attorney, and the Verdict did pass for him.

Judgment was reverst in Error of a Judg∣ment in C. B.* 3.287 in not severing for what part by number of Acres by Special Verdict, and giving entire Damages to the Plaintiff, 2 Keb. 250. M••••kworth and Thomasin.

Ejectione Firme was against Baron and Feme:* 3.288 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,* 3.289 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,* 3.290 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, with∣out saying, Quod capiatur, this is erro∣neous; 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,* 3.291 and in this the Judgment is reversed, the Plaintiff shall have Judg∣ment 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 Judg∣ment

to recover Damages;* 3.292 otherwise in A∣ctions where Freehold is to be recovered, Savile 28.

In what Cases Judgments shall be amended.

The Jury find the Defendant guilty of Ten Acres,* 3.293 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 gi∣ven; and upon this the Judgment is, Quod quer' recuperet the Damages and Costs, and not quod recuperet terminum,* 3.294 as the use is; this is the Default of the Clerk, and so a∣mendable, 1 Rolls Abr. 206. Belsh and Pate.

The Clerk of the Entries of the Judgments had mistaken the Parcels,* 3.295 the Jury having found several Ejectments in several Parcels, they find S. had ejected him out of certain Parcels by a certain Name,* 3.296 and T. had ejected him out of other Parcels by a cer∣tain 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 me∣dietate 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,* 3.297 whereof he is found Not guilty, in as much as it is tenementorum praedictorum, yet it shall be amended, it being only the Default of the Clerk, having the Postea before him when he entred the Judgment, 1 Rolls Abr. 206. Sawyer and Hoskins.

Judgment quod recuperet, and saith not ter∣minum, yet amended, 1 Keb. 155.

The Judgment was,* 3.298 quod recuperet the Pos∣session of a Messuage, Sixty Acres of Land, Fifty Acres of Meadow, and Fifteen Acres of Pasture; whereas the Verdict was entred, That he was found guilty of the Ejectment of a Messuage, Ten Acres of Meadow and Thirteen Acres of Pasture, and for the resi∣due, Not guilty; so as there is not any Land in the Verdict, and a lesser Quantity of Meadow and Pasture than is in the Judg∣ment, per Curiam it is amendable, and is not like the Entry of a Capiatur for a misericer∣dia, which is not amendable, that being an Error in point of Law, and cannot be im∣puted to the Default of the Clerk: But here the Verdict is the Guide to the Judgment; and when the Verdict is before the Clerk to enter up the Judgment, it is but his Mispri∣sion, especially the Entry of the Judgment in the Paper-book being right according

to the Verdict, Cro. Jac. 632. Mason and Stephenson.

EXECUTION.

In Ejectment against two,* 3.299 one confesseth, the other pleads Not guilty, and at the Try∣al the Plaintiff is Nonsuited, he cannot take Execution against him that confesseth, but if by Rule of Court one be made Defendant for part and confess, the Plaintiff notwith∣standing the Nonsuit, may take Judgment a∣gainst him that confesseth for his part; but if each Defendant take upon him the whole Title, the Plaintiff in any case cannot have Execution; but one Defendant being Lessor of the House, reserving a Chamber, who never had any notice of the Action, and therefore Judgment entred of the whole House, is not void quoad the Chamber only, but wholly. And Hide would have had the Attorney who entred Judgment, pay Costs, but ordered Possession to be delivered to the Tenant on Agreement to relinquish the Costs, 1 Keb. 786. Burgoigne and Thomas.

It was a Question much debated, If a Scire fac' quare Executionem habere non debeat up∣on a Judgment in Ejectione Firme, may be brought by the Administrator of the Lessee (the Plaintiff in Ejectment,* 3.300 or by the Les∣sor himself) against the Free Tenants; and Per Cur' the Lessee or his Administrator, as well as the Lessor himself shall have this Writ in such a Case; this was on demurrer to the Scire fac': Yet the Lessee nor his Admi∣nistrator

shall have it, but the Lessor himself, Sid. 317. Cole and Skinner.

Note,* 3.301 Baron and Feme are ejected out of a Term in the Right of the Wife, and the Husband recovers in Ejectione Firme brought by him in his own Name, this is an altera∣tion of the Term, and vests it in him only, 1 Inst. 46.

Note,* 3.302 It was adjudged in Throgmorton and Sir Moyle Finch's Case, That after Judgment for the Mortgagee in Ejectment, a Court of Equity cannot relieve the Mortgagor; but he ought to have preferred his Bill before Judgment, 3 Bulstr. 118. The Case was, He by whom the Money was sent to be paid for the Redemption of the Land, was by the way robbed of the Money; but the Money was paid presently after.

Note also,* 3.303 In Ejectione Firme, if a Rule is given to the Defendant to answer, and he doth not; and upon this another Rule is gi∣ven to answer peremptorily, and he fails to do it, no Judgment shall be entred against him on a Nihil dicit, but upon Motion in Court.

It is said in Carter and Claypool's Case, 1 Rolls Abr. 887. If a Man recover in Ejectione Firme against J. S. who after dies, he must sue Execution against his Heir; for by In∣tendment J. S. his Ancestor the Ejector, was was a Disseisor.

Of Judgment against ones own Ejector.

Judgment against the casual Ejector, Coun∣cil prayed that he might not plead to the Declaration of Michaelmas Term on Lease of the Bishop of Worcester, made this January Habend' from the 20th of October last, which is ill, per Cur', and Judgment stayed; but this is a good Declaration of this Term by new Delivery,* 3.304 tho' of Course a Declaration is of that Term always when the Tenant ap∣pears, which was but this Term, yet Judg∣ment stayed, 3 Keb. 729. Hill. 18. Car. 2. Finch and Pley.

The Action was of Easter Term, and the Demise and Title of the Plaintiff is but two days before Trinity Term,* 3.305 and there was a Rule for Judgment against the casual E∣jector; per Cur' this is but a Trick to gain Possession, as Sir Richard Mincham's Case was, who delivered Ejectments in his Wife's Life-time on Lease then when he had Title as of subsequent Term when she was dead; and it is not fit to put the Tenant to a Writ of Error: So the Rule was set aside, and ordered a new Declaration, 3 Keb. 343. Tr. 26 Car. 2. Stedman's Case.

Judgment against ones own Ejector can∣not be entred,* 3.306 till the Postea retorned and indorsed, that the Nonsuit was for want of confessing Lease, Entry and Ouster, which the Secondaries agreed for a Rule, 1 Keb. 246. Sir Hugh Middleton's Case.

Council prayed Judgment against his own Ejector in an Action for Lands in the Coun∣ty Palatine of Chester,* 3.307 which the Court grant∣ed; because when the Defendant hath pleaded to Issue, they may try it by Mitti∣mus in the County Palatine, 2 Keb. 135. Red∣dish against Smith.

CHAP. XV. Habere facias Possessionem.* 3.308

How this Writ is to be executed. And when, and in what Cases a new Habere facias Possessionem, shall be granted or not. How the Sheriff is to deliver Possession. Habere facias Possessionem, after the year without Scire fac' and why.

THis Writ is made out by the Clerk of the Judgments,* 3.309 after Costs taxed and the Judgment signed.

In Ejectione Firme of 20 Acres of Land. The Defendant on Not guilty pleaded, is found Guilty for 10 Acres, and Not guilty for the Residue. Now the Plaintiff at his own peril,* 3.310 upon his own shewing which they are, shall be put in Possession, Savil p. 28.

And if a Man bring Ejectione Firme of 40 Acres of Land, and recovers 30, and not the Residue. Upon the Writ of Execution the Sheriff may deliver to him any, (viz.) Three or more of the Acres in the name of the whole,* 3.311 without setting out the Land, recovered by Metes and Bounds; tho' the Plaintiff had not recovered all the Acres, whereof he brought the Action, and where∣of he had supposed the Defendant Tenant, 1 Rolls Abr. 886.

Now,* 3.312 if a Writ of Execution go to the Sheriff, to put a Man in Possession of 20 Acres of Land; the Sheriff ought to give him 20 Acres in quantity, according to the usage of the Country, and not according to the usage of the Statute. And if a Man recovers divers Messuages, the Sheriff upon the Writ of Execution (may make Execution of one in the name of all, with∣out going to every one in particular,* 3.313 but (if in such Case) the Messuages be in the Possession of several Men, he ought to go to every House particularly, and of them to deliver Seisin, and the delivery of Seisin of one, in the name of all is not suffici∣ent, Floid and Bethel.

When many Acres are in demand, and but part recovered, and the Habere fac' Pos∣sessionem comes to the Sheriff to deliver Ex∣ecution of the Land recovered,* 3.314 it does not suffice there to give one Acre in the name of the whole recovered; but he ought to set forth all the Acres particularly, so that the Recover or may have benefit of the Judg∣ment in certainty, and the several profits without interruption, Pal. Rep. 289. Mo∣linex and Fulyam.

Sometime a Rule of Court is to give Possession.

If one recover Rent or Common,* 3.315 a Writ Issues out to the Sheriff to put him in Posses∣sion, and the Sheriff comes upon the Land, and delivers him Seisin of the Rent or Com∣mon by parol, this is well done, 22 Ass. 84.

Hab. fac' Possession',* 3.316 if execute is good with∣out return. But the Court may command the Sheriff to return it, 1 Rolls Rep. 77.

Note,* 3.317 The Sheriff in Cases where Land is recovered, is to put the party in Possession and Seisin by a Twig, Clod, &c. of an House by the Key, &c. of Rent by Corn or Grass growing on the Land, out of which the Rent Issues, 6 Rep. 52.

Error was of a Judgment in the Kings-Bench in Ireland, and Judgment for the De∣fendant was reversed, and Judgment given for the Plaintiff, quod recuperet terminum suum praed.* 3.318 It was moved how Habere fac' posses∣sionem should be awarded. And it was re∣solved, That there should be a Writ dire∣cted to the Chief Justice in Ireland to Reverse that Judgment, commanding him to award Execution, Cr. Car. 511. Mulcarry and Eyres.

In what Cases a new Habere fac' Possessio∣nem shall be granted or not, and of the She∣riffs demeanor therein.

Nota pro Regula. That after Habere fac' possessionem executed; be it by the Sheriff or voluntary delivery of Possession, if the Par∣ty be turned out again by the Defendants means,* 3.319 he may have a new Habere fac' possessionem on motion in Court, and an At∣tachment against him: But if after quiet Possession others enter, he must have a new Action or Restitution; else by this means, by practice the Plaintiff may turn out any

of his after Lessees on Non-payment of Rent. Had actual possession been by Agree∣ment of the Parites, or by Delivery of the Sheriff, the Party can never after have a Habere fac' possessionem: But if there be agree∣ment to deliver Possession in futuro, if it be denied a new Writ may be had. But after the year there must be a new motion for it in Court: With this agrees Pearson and Taver∣nor's Case, if one recovers in Ejectment, up∣on which the Recoveror was put in Posses∣sion Per Habere fac' possession, and after the Defendant ousts him again, if the Writ was never retorned (because then it appears nor, that the Plaintiff was ever out of Possession) a new Writ shall be granted, 1 Keb. 779. Ratliff and Tate, 1 Keb. 785. Lovelace's Case, 1 Rolls Rep. 353. Peirson and Tavernor's Case.

It is expresly resolved in Dame Molineux and Falgam's Case, Palmer p. 289.

If Haber e facias possessionem go to the Sheriff,* 3.320 and he returned Execution of the Writ, and the Writ is filed; there the Court may not award a new Habere fac' possessionem, but before they may, because in the first case it appears the Party had Exe∣cution. The Council prayed, That the De∣fendant might file an Habere facere possessi∣onem to the intent that no new one may be taken out, or that, that was taken out should not be filed after the return of it, which the Court refused; for the Party hath election to return it or not, and may renew it at pleasure, till an effectual Execution be had; albeit the Party had Execution, yet if there were any suddain expulsion of him,

he shall not be Estopt, 2 Keb. 245. Under∣hil and Devereux.

Also,* 3.321 if the Sheriff give Seisin but of part, he may have new Habere fac' possessionem for the rest.

So in Stile's Case, 2 Browl. 216. Stiles up∣on a Judgment in Ejectione Firme, was put into Possession by the Sheriff, by Habere fac' possessionem, and after the Defendants enters again, and the Writ was returned but not Filed.* 3.322 Per Cur. He may not have a new Writ of Execution, but is put to his new Action, and the Filing of the Writ is not material, for it is in the Election of the Sheriff, if he will return it, or not. But if Execution had not been fully made, as in case of persons hiding themselves in the up∣per Lofts, and after the Sheriff was gone, they outed those that were in Possession, in this Case a new Writ of Execution was awarded. But by the Chief Justice, if the Sheriff put a Man in Possession, and after the other which was put out enter forth∣with; in this Case the Court may award an Attachment against him for contempt a∣gainst the Court, and so an Attachment was awarded upon Affidavit in Gallop's Case, 2 Brownl. 253. To this purpose is Upton and Well's Case, 1 Leon. p. 145. Upon the Ha∣bere fac' Possessionem, the Shereiff returned that in the Execution of the said Writ, he took the Plaintiff with him,* 3.323 and came to the House recovered, and removed there∣ou•• a Woman and two Children, which were all the persons which upon diligent search he could find in the said House, and

delivered to the Plaintiff peaceable Posses∣sion to his thinking, and afterwards departed-and immediately after three other persons, who were secretly lodged in the said House expulsed the Plaintiff again: Upon notice of which he returned again to the said House, to put the Plaintiff in free Possession, but the others did resist him, so as without peril of his Life, and of them that were with him in Company, he could not do it. And upon this return, the Court awarded a new Writ of Execution, for that the same was no Execution of the first Writ, and also awarded an Attachment against the Parties, 1 Leon. 145.

If the Sheriff delivers more Acres than are in the Writ,* 3.324 this makes not the Writ Er∣roneous, but Action on the Case lies against the Sheriff for doing it; but if the Writ of Hab. fac. possessionem contains more Acres of Land, than were in the Declaration, the Writ is Erroneous.

Upon Ejectione Firme,* 3.325 and Judgment Hab. fac. possessionem shall be after the year without a Scire fac. as to the Damages; yet its not absolutely requisite, that there should be any Scire fac. as to the Land; for if the par∣ty take Possession of other Land than he ought, Trespas lies, 1 Sid. 351. Okey and Vicars. Scire fac' is given in personal Action, per Stat. W. 2. where the remedy was af∣ter the year to commence a new Action on the same Judgment; which cannot be in this Case as to Land, tho' it may be as to Damages; on Judgment for Damages, Costs or Debt, there must be a Scire fac', for here

is a person certain charged; not so in Hab. fac. possessionem, 2 Keb. 307. Mesme Case; but the Hab. fac. Possessionem, shall not be granted an year after the Judgment without a mo∣tion in Court.* 3.326 And if it be once executed, tho' the parties are turned out presently by a trick, yet they may not have new Hab. fac. possessionem without motion of the Court, Siderf. pag. 224.

Note, It was a Question in one Hills's Case, upon the Statute of Maintenance: A Man was out of Possession, and recovered in Ejectione Firme, and was put in Posses∣sion by Habere fac. possessionem, Whether he might sell presently, and adjudged he might, God. b. 450.

Upon the Hab. fac. possessionem, the Sheriff may break open the House to deliver Pos∣session, 5 Rep. 91.

Return de Hab' fac' Possessionem cum Fieri fac.

Virtute istius brevis mihi direct' 24 die Maij anno infra scripto Habere feci infra nominat' H. H. Possessionem Termi∣ni sui infra scripti de Tenementis infra script' cum pertin ac etiam Fieri feci de Terris & Catallis infra nominat' W. W. 20 s. parcel damnor infra script & denarios illos haber coram Justiciarijs infra script ad diem & Locum infra content ad red∣dend' prefac H. prout interius mihi pre∣cipitur.

Of Misdemeanors in Possession.

In Ejectment Declarations were delivered, and on Verdict Evidence was found for the Plaintiff against some, and Judgment against the Casual Ejector for others, in the whole 47 Houses. Upon colour of Hab. fac. pos∣sessionem, the Sheriff turns out of Possession these 47 Tenants, and 80 other Tenants also without any Process or Plea against them, for the Execution of which Writ the Sheriff took of the Plaintiff 200 l. for Fees. 1. The Court would not grant any. Writ to supersede this Execution against the 80, for if so then it ought to be Quia erronicè, and there was not any Error in the proceedings against them, because there was no procee∣dings against them, but they may bring Trespass against the Sheriff,* 3.327 and the Sheriff shall be indicted for Extortion; for they cannot take such Fees in case of real Estate as personal, 2 Sid. 155.

There is a remarkable Case in Siderf. 254. the King against Farr. Farr being a Sollicitor, had obtained a Judgment against the Casual Ejector, upon which he Sues Hab. fac. posses∣sionem, and the Sheriffs Bay liffs enter the House with him, and break the Door where the Goods were, and take the Woman to whom the House and Goods belonged, and required of her Special Bayl, and for want of it brought her to Newgate; then Farr took the Goods which were of great value. And upon Tryal at the Old-Bayly it appeared,

That Farr did this with intent to take away the Goods, and had no colour of Title to the House for his Client. He was found Guilty of Felony, and was hanged, not be∣ing able to Read tho' he were a Sollicitor.

The Court was moved for an Attachment against J. upon an Affidavit, that he had ejected one out of Possion that was put in by Hab. fac. possessionem, and that in a very Riotous manner, and had imprisoned the Party so put out of Possession. The Coun∣cil on the other side answered, That the party came into the Land by vertue of an Eigne Judgment, and an Extent upon it. Rolls, here is Title against Title, therefore take your Course in Law, for we make no Rule in it, Stiles p. 318. Fortune and Johnson's Case.

Verdict for the Plaintiff was found in Ejectment. But upon Agreement made be∣tween the Plaintiff and Defendant, The Defendant was to hold the Land recovered, for the remainder of his Term to come, and according to this Agreement he held it for two years; but afterwards before his Term expired, the Plaintiff takes out an Hab. fac. possessionem and executes it. It was moved, That the Defendant might have a Rule for Restitution. Per Cur. it cannot be: Take your Action on the Case against the Plain∣tiff, for not performing his Agreement, Stiles Rep. 408. Wood and Markham.

CHAP. XV.

Of Action for the mean Profit's. In whose Name. What Evidence shall be given in this Action or not.

THe Action for the mean Profits on the Judgment in the Ejectment,* 3.328 shall be in the name of the Lessee during his Term. And note,* 3.329 In this Action no Evidence shall be given, as to the Right, which must be, if the Action should be in the Lessors name, and therefore he can have no such remedy, 1 Keb. 731. Sadler and Taylor.

A Tryal at Bar was prayed in Action for mean Profits. But the Court denied it, be∣cause how good a Title soever the Defen∣dant hath, he cannot give in Evidence any other matter than what was before Ruled. But by Twisden the Title being admitted, other matter may be given in Evidence, as a Release or Fine by the Plaintiff: And the same Law is in Action by the Lessor, in the former Action as by the Lessee, and a∣gainst the Undertenant, or any that claim under the former Defendants Title, especi∣ally the contest being for profits during the time of the former Action hanging.

So it is said in Harris and Wills's Case. If Recovery be in Ejectione Firme, and after Trespass is brought for the mean profits before the Lease, nothing shall be given in Evidence, but the value of the Profits and not the Title. For if it should be so, then

long Tryals would be infinite. Also, if it be between the same Parties, the Record is an Estoppel; so the Court held it should be, if it were against Undertenants. But the Court granted a Tryal at Bar, in assurance they would not insist upon the Points for∣merly adjudged, but admit it, and insist upon new Title, Siderf. p. 239. Collingwood's Case.

In 1 Will. and Mary, The Court was mo∣ved to set aside a Verdict, recovered in an Action for the mean profits after Recove∣ry in Ejectment, shewing that the Defen∣dant in the Ejectment had brought another Ejectment since, and recovered; so that the first Recovery was disaffirmed, and there∣fore there ought to have been no Recovery for the mean profits, but the motion was denied, per tot. Cur. 2 Ventris Reports.

Trespass lies by Recoveror in Erroneous Judgment for a mean Trespass; because the Plaintiff in Writ of Error recovers all mean profits, and the Law by fiction of Relation, will not make a wrongdoer dispunishable, 13 Rep. 22. But contra, where Act of Parliament restores.

In Trespass with continuando to recover mean profits, an Entry and Possession of the Land before the Trespass must be proved; and also, another Entry after the Trespass. Lessor is the principal Person lookt upon in the Law to Sue for the mean profits, 2 Keb. 794.

A Termor being Outlawed for Felony, granted his Term and Interest to the Plain∣tiff, who is put out by J. S. and after the

Outlawry is reversed; and the Plaintiff brought Trespass for the profits taken be∣tween the Outlawry Reversed and the Assignment; adjudged, that the Action did lie; for tho' during that time that the Queen had the Interest, and the Assignee had Right, yet by the reversal it is as if no Outlawry had been, and there is no Record of it, Cr. Eliz. 270. Ognells's Case. It was held by Justice Vernon, where a Man would recover the mean profits in Trespass, he must prove Entry into every parcel, and not into one part in the name of all. An Action of Trespass came to Tryal before T. for reco∣vering the mean profits, and the Trespass was laid the 11 of May with a continuation, and the first Entry was before the 17 Day; And an Ejectment had been brought of this Land the same Assizes, and because a second Entry is required to recover the mean profits, the which if it shall be, will happen after that time which he hath ac∣knowledged himself out of Possession, by his Action of Ejectment, and such Entry will abate the Action; it was directed to find Damages for the first entry only.

It is a Rule in Law: By the Re-entry of the Disseisee, he is remitted to his first Pos∣session, and is as if he had never been out of Possession; and then all who Occupied in the mean time, by what Title soever they come in, shall Answer to him for their time, as if a Disseisor had been Disseised by another: The first Disseisee Re-enters, he shall in Trespass punish the last Disseisor; otherwise, after his Re-entry he should

have no remedy for his mean pro∣fits.

Note, In Trespass for mean profits Speci∣al Bail is always given, 1 Keb. 100.

Writ of Enquiry for mean profits abates by Death after Judgment,* 3.330 and before or pendent Error, but after affirmed is in miti∣gation, Warren and Orpwood, 3 Keb. 205.

Where one Declares on a Fictitious Lease to A.* 3.331 for three years, and within the same Term Declares of another Fictitious Lease to B. of the same Lands; the last is not, good for Trespass for the mean profits must be brought in the first Lessees name, ut dici∣tur.

Its a note in Siderf. p. 210. If one Reco∣ver and had Judgment in Ejectione Firme, according to the usual practice, by confes∣sing Lease, Entry and Ouster, &c. it was a doubt by the Court, if upon such Con∣fession, Lessee may have Trespass for the mean profits, from the time of the Entry confessed; for it seems it is an Estoppel, between the Parties to say, That he did not enter. Tamen Quaere, because this Con∣fession is taken to Special purpose only, Siderf. p. 210.

If a Writ of Error in Ejectment abates by the Act of God, a second Writ shall be a Supersedeas. Aliter, where it abates by the Act of the Party, 1 Vent. 353.

Judgment in Ejectment. The Defendant (Plaintiff) brings a Writ of Error. The Plaintiff who is Defendant in the Writ of Error, brings a Scire fac. Quare Executionem non. To the intent the Defendant, Plain∣tiff

in Error might assign Errors. To which the Plaintiff in Error pleads, That the De∣fendant ought not to have Execution, be∣cause he was in Possession already, by vertue of Hab. fac. possessionem. Per Cur. Its a trick for delay, The Scire fac. being only to the intent, that the Defendant may assign Er∣rors, and there can be no such Plea to it in stay or delay of Execution, 1 Keb. 613. Winchcomb's Case.

CHAP. XVII.

Writ of Error.

Where it lies. Of what Error the Court shall take Conisance without Diminution or Certi∣ficate. Variance between the Writ and De∣claration. Variance between the Record and the Writ of Error. One Defendant dies after Issue and before Verdict. Non-age in Issue on Error where to be tried. Amendment of the Judgment before Certiorari unaided. Release of Errors from one of the Plaintiffs in the Writ of Error, bars only him that released it, and why. Outlawry in one of the Plaintiff pleaded in Error. Of Release of Errors by ca∣sual Ejector.

ERror lies in B.* 3.332 R. upon a Judgment in Ejectment before the Justices in Wales, per Stat. 27 H. 8. Error in Real Actions shall be reversed in B. R. and in personal Actions by Bill before the President and Council of the Marches;* 3.333 and because Ejectment was a mixt Action, there was some doubt, but it was resolved, ut supra, Moor p. 248. no 391.

Writ of Error lies in the Exchequer-Cham¦ber upon a Judgment in a Scire fac' in E∣jectione, Sid. Crook Car. 286.

Lessor or Lessee may have a Writ of Er∣ror on Judgment in Ejectione, Sid. 317.

In a Writ of Error upon a Judgment in Banco in Ejectione Firme,* 3.334 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 easia∣mentis quales Vicarius adtunc habuit cum omni∣bus 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 Ex∣ceptions.* 3.335 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,* 3.336 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 Eject∣ment, 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.* 3.337 1. Be∣cause 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 Re∣cord before seven cannot be intended the same Record. 2. This Writ of Error is di∣rected 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 men∣tion 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 Bo∣real' parte, &c. & quoad resid' pro Def. and the Judgment was, quod Quer' recuperet termi∣num 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 Er∣ror. 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,* 3.338 if after Issue joyned, and Venire fac' awarded, one of the Defendants dies; and after a Verdict is gi∣ven at the Nisi prius for the Plaintiff, and af∣ter before Judgment the Plaintiff ••••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 as∣signed for Error; for in as much as the Plain∣tiff had made this Surmise, it being a mat∣ter of Fact, and the Plaintiff might not have any Answer to it (the use not being to en∣ter ••up this, that, the Plaintiff does not de∣ny it) the Plaintiff had no other Remedy but to assign this for Error. But this is re∣ported 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 Dama∣ges 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.* 3.339 recover against B. in Ejectione Firme in D. upon which B. brought a Writ of Er∣ror 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 At∣torney; and upon the Nonage the Parties are at Issue; this shall be tried in Westmin∣ster, and not in D. where the Land lies, be∣cause the Ejectione Firme is not any real A∣ction; and in as much as it is specially al∣ledged that he was within Age and commo∣rans at VVestminster when the Writ of Er∣ror was brought, 2 Rolls Abr. p. 604. Orde and Moreton.

Error of a Judgment in Ireland in Eject∣ment was assigned,* 3.340 that the Plaintiff then Defendant was per Attornat', and within Age, Judgment was reversed notwithstand∣ing 17 Car. 2. c. 8. vide 3 Keb. 384. D. of Albermarl and Keneday.

In Ejectment one of the Defendants plead∣ed Not guilty, and Verdict for the Plaintiff against both, and Judgment accordant. Er∣ror was brought, because in the Venire Con∣stantinus Callard was retorned, and so named in the Distringas;* 3.341 but in the Pannel annex∣ed 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

Names of Baptism, and cannot be amended; but Curia advisare from Hillary Term till Pasche; in the mean time the Defendant in the Writ of Error obtained a Release of all Errors from one of the Plaintiffs in the Writ of Error, and the first day of Term Pasch. pleaded it in Bar as a Plea puis darrein Con∣tinuance; and thereupon a Demurer was en∣tred in the Names of both the Plaintiffs in the Writ of Error;* 3.342 for in nullo est erratum being pleaded before, there could not now be any Summons and Severance. Per Curiam this Release shall bar him only that released it, and not the other Plaintiff (though the Action was in the personalty:) For the Plea being by way of Action, to discharge them∣selves of Damages which were recovered a∣gainst them, and to be restored to the pos∣session which was lost by the first Judgment; and they being joyned in the first Action by the Act of the Plaintiff, and their own vo∣luntary Act, it is not reason that the Act of one shall charge or prejudice the other. But otherwise if they had been Plaintiffs in the Record by their own Act, Cro. Jac. 116. Blewit and Snedstow.

Verdict was pro Quer' for 10 Messuages, 15 Acres of Land, 15 Acres of Meadow and 20 Acres of Pasture, and as to the Residue Non Culp. And the Judgment was, That the Plaintiff should recover the Messuages and the greater Quantity of Acres which were in the Verdict. Upon which the Plaintiff brought a Writ of Error, and assigned Er∣rors, and had a Scire fac. and before the Defendant in the Writ of Error joyned in

nullo est erratum, it was moved in Common Bench for amendment of the Judgment. It was objected. 1. That the time after the Assignment of the Error was past for the amendment.* 3.343 Per Cur. The time is not past, so long as a Diminution may be alledged, or a Certiorari awarded, it may be amended. 2. The Judgment is the Act of the Court, and therefore may not be amended. Per Cur. It is the default of the Clerk, who did not enter the Judgment according to the Verdict, Jones Rep. p. 9.

Ejectione Firme by two against one De∣fendant. And on Not guilty, Verdict for the Plaintiff. The Error assigned was, be∣cause Constantinus Callard was returned, and so named in the Distringas, but in the Pan∣nel annext thereto by the Sheriff, Constanti∣us Callard was Returned and Sworn,* 3.344 and so was returned by that name on the back of the Postea. Its manifest Error; for they be distinct names of Baptism, and not amend∣able. But Curia advisare. In the mean time the Defendant in the Writ of Error obtain∣ed a Release of all Errors from one of the Plaintiffs in the Writ of Error.* 3.345 And the first day of Easter Term pleaded it in Bar as a Plea puis darraine Continuance; and thereon a Demur entred in the name of both the Plaintiffs in the Writ of Error. For in nullo est erratum being pleaded before, there could not be any Summons and Sever∣ance. Per Cur. This Release shall bar only him that Released it, for the Plea being by way of Action to discharge themselves of Damages, which were recovered against

them, and to be restored to the Possession which was lost by the first Judgment; and they being joyned in the first Action, by the Act of the Plaintiff, and not by their own voluntary Act, it is not Reason, that the Act of one should charge or prejudice the other, for then by such practice any one might be charged, and should have no remedy to discharge himself. And the Judgment was reversed, quoad him that did not Release, and that he should be restored to all what he lost, and quoad the other who released, that he should be barred in his Writ of Error, Cro. Jac. 116. Bluit and Snedstow, 2 Rolls Ab. 411. Mesme Case.

So the Defendant in the Writ of Error Pleads Outlawry in one of the Plaintiffs.* 3.346 Per Cur. Its no Bar, because this is an Action not to recover any thing, but to restore them to what they had lost, and to dis∣charge them of Damages and Fines; and they are forced to joyn, because one of the Plaintiffs was a Defendant in the former Action, Cro. Jac. 616. Bythell and Harrts.

Error without Bail is a Supersedeas in E∣jectment,* 3.347 notwithstanding the Act of 13 Car. 2. c. 2. being not within the general word Trespass, 1 Keb. 308. Lufton's Case.

And unless all the Defendants in Eject∣ment do give Recognizance, its no Super∣sedeas, for as to the Land its intire, 3 Keb. 138. Cole and Levingstone.* 3.348

Baron seised in the Right of the Feme, makes an Ejectment Lease, and the Lessee brings an Action upon it, and hath a Verdict and Judgment; its not Error to alledge the

death of the Wife before Judgment, by which the interest of the Husband, and Lease by him made to the Plaintiff deter∣mines, because neither the Wife nor the Husband are Parties to the Action, and this determins upon the Title to the Land; for the Plaintiff may say, That the Husband was seised in his own right, 1 Rolls Abr. 768. Wilks and Jordan.

Error was brought to Reverse a Judgment in Ejectione Firme,* 3.349 and Error in Fact assign∣ed, (viz.) That the Plaintiff in the Eject∣ment was dead before Judgment: To which he that was Attorney for the Plaintiff plead∣ed, That he was alive at such a place, and upon this Issue joyned, and found that he was dead. Per Cur. The Issue is well joyn∣ed, and the Judgment shall be reversed for this Error without Scirc fac. against the Ex∣ecutors, for until the Issue tried none can deny, but that the appearance was good. But the surer way had been for the Attorney to have pleaded quod venit pro magistro suo D. and not qd. D. venit per Attornat. Siderf. p. 93. Dove and Darcen.

If a Man recover in Ejectione Firme,* 3.350 and after his Executor Sues Execution by Scire fac' against the Recoveree; the Recoveree may not avoid the Judgment, nor stay Exe∣cution by saying, That the Plaintiff died between the Verdict and Judgment, or such like. But he is put to his Writ of Error, for the Judgment is only voidable, 1 Rolls Abr. 742. Hide and Markham.

But in 1 Rolls Abr. 768. If a Man brings Ejectione Firme in B. R. and there he hath a Verdict on Tryal at the Bar, and after, and before Judgment he dies,* 3.351 and after Judg∣ment is given against him the same Term. This is not Error, because the Judgment relates to the Verdict, Hide and Mark's Case.

Lessor of the Plaintiff in Ejectment,* 3.352 may have a Writ of Error upon a Judgment in Ejectione Firme, Siderf. 317. Cole's Case.

Release of Error, vid. supra.

The Issue was that H. who was casual Eje∣ctor, and gave Release of Errors, was not the same Person. Being tried, The Court would not suffer the Defendant to Assign Error, but conceived he was barred now, 1 Keb. 755. Keyes and Bredon.

The Defendant obtains a Release of his casual Ejector,* 3.353 and pleads it to a Writ of Error, of a Judgment by defalt, of Eject∣ment in Ireland; altho' the Issue was, that he that made the Release was not the same Person as was casual Ejector. Yet per Cur. It ought to be set aside, and the Error As∣signed, 1 Keb. 705. vid. 7.

Release by Casual Ejector is a fraud.

The Court conceived a Release of Errors,* 3.354 obtained of the Casual Ejector by the Les∣sor being but Fictitious is void. And the Court made a Rule, That no such Release be ac∣cepted without Leave of the Court, 1 Keb. 740. Keys and Bredon.

The Case was, As it is Reported in Ray∣mond, 93, Keyes and Bredon. The Plaintiff ob∣tains a Judgment against his own Ejector, in a Case where an Infant was in Possession; and the Party concerned in the Lands,* 3.355 brings a Writ of Error in the name of the feigned Defendant. The Plaintiff in the Writ Pleads the Release of the Defendant. Per Cur. Such Release shall not be allowed. And the Court will not permit the Party to proceed to try the Issue, if the Release be good or not, because it is to Bar the Right of a third person.

On Ejectment after Judgment against Ca∣sual Ejector, for not confessing Lease, Entry and Ouster; the Defendant in the Ejector's name brought a Writ of Error,* 3.356 and now the Ejector was brought to the Clerk of the Errors, and disavowed the Suit, and there∣upon it was prayed by Council, that a non Pros. may be entred, as is the usual Course in such Case, 2 Keb. 579. M. 21. Car. 2. VVats and Loyd.

In the Lord Byron and Sir VVilliam Juxon's Case, Council prayed leave to discontinue a Writ of Error brought in the Ejector's

name, of Judgment in the County Palatine of Lancaster against him by default, shew∣ing a Release of Errors by the Casual Eje∣ctor: But the Court denied it, but left them to Non - suit the Plaintiff in Error, 2 Keb. 853.

A Release of Error by the Causual Eje∣ctor, no Discontinuance in Error, 2 Keb. 853.

Ejectment was brought against eight De∣fendants in B. C. Error was brought, ground∣ed upon the Judgment, and the Writ was ad grave damnum ipsorum, and the Judgment was only against three, and other five were acquitted, The Error was assigned in the Non-age of the three. Per Cur. The Writ of Error was good, tho' it might be also ad damnum of those convicted. But being only in the nature of a Commission, whereby the King Commands the Errors to be exa∣mined; this matter is not material, Hob. 70. Yelv. 209. By Twisden, The constant pra∣ctice is for all to joyn, and per tot. Cur. Judg∣ment ought to be reversed against all. Error of a Judgment in Ejectione Firme, and in the Record a space was left to insert the Costs which had not been taxed, if such an im∣perfect Record be certified; yet it might be amended by Rule of Court there, and then if it be removed by Error, the Court there must amend it. For it is the constant practice, That if a Record be removed into the King's Bench, out of the Court of Com∣mon Pleas by Writ of Error, and afterwards amended by Rule of Court in the Common Pleas, The Court of King's Bench must a∣mend

it accordingly, vid. Hard. p. 905. 1 Ventr: 165. Bell and Richards.

Ejectment was brought in C. B. in Ireland, and declares against Commyn de Castrovilla & Terris de Kilborough, in such a County. The Plaintiff had Verdict and Judgment. Com∣myn brought a Writ of Error in B. R. in Ireland,* 3.357 and Assigns for Error, the want of an Oiginal. The Plaintiff rejoyns, that such a Day an Original Writ was delivered to such a one, and concludes to the Country. And the Judg∣ment was reversed there for want of an Original, on which the Plaintiff brought a Writ of Error for reversal in B. R. in Eng∣land. And the Judgment given in B. R. in Ireland was reversed here, for the matter was discontinued. Because the Defendant in Ireland concludes al pais, where in truth the matter of his Plea should be tried by the Record, and the Plaintiff in Error doth not Reply, or Demurr upon the Plea of the De∣fendant, and so all is discontinued. Also, there was another apparent Error in the De∣claration, viz. the Action brought de castro villa & terris in Kilborough, without expres∣sing the number and certainty of Acres, and upon such general demand no Habere fac' Possessionem can be awarded and executed, Yelv. 117. St. John vers. Commyn.

Notes

• * 1.1

  The Reason of the Change of Real Actions into Ejectione Firmes.
• * 1.2

  Diversity where the Damages are only reco∣vered, and where the Term.
• * 1.3

  Diversity, Pos∣session a good Title in Tres∣pass, but not in Ejectment, and why.
• * 1.4

  Diversity, co∣lour not suffi∣cient in Ejecti∣one Firme, and why.
• * 1.5

  Conisance of Trespass in∣cludes not E∣jectments.
• * 1.6

  In Ejectment against two, one pleads to Issue, and the other demurs Issue first to be tried.
• * 1.7

  Note. Ejectione and Trespass for Battery, both one Writ.
• * 1.8

  In the Exche∣quer.
• * 1.9

  How Ejectment lies in Ancient Demesne.
• * 1.10

  After a special Verdict found in G. B. the Plaintiff may bring a new Ejectment in B. R. aliter of the Defendant.
• * 1.11

  Ejectment will not lie of Land in Jamaica, and why.
• * 1.12

  How Eject∣ments to be brought, if the Lands lie in Middlesex or London. Not removable by a Proceden∣do to a Fran∣chise.
• * 1.13

  Procedendo de∣nied, because Bail was put in B. R.
• * 1.14

  To be tried where its sup∣posed the Lease is made.
• * 1.15

  Canterbury.
• * 1.16

  Marches of Wales.
• * 1.17

  In respect of Possession.
• * 1.18

  In respect of Entry congea∣ble.
• * 1.19

  Ejectment by Copyholder or his Lessee.
• * 1.20

  4 Leon. p. 18.
• * 1.21

  By Lessee of a Copyholder without Li∣cence of the Lord.
• * 1.22

  Declaration by Copyholder in Ejectment.
• * 1.23

  Copyholder in his Declaration need not set forth the Cu∣stom.
• * 1.24

  Ejectione Firme by Copyholder before Admit∣tance or Pre∣sentment, and where not without Ad∣mittance.
• * 1.25

  Copyholder Mortgagee must be admit∣ted before he brings this Action.
• * 1.26

  By Executors.
• * 1.27

  By Infant.
• * 1.28

  By Symonist.
• * 1.29

  The Sheriff on∣ly to deliver Se••sure on Ele∣git to enable the Plaintiff to maintain E∣jectment.
• * 1.30

  Ejectione Firme be for actual Entry on Ele∣git.
• * 1.31

  Remedy against undue Extent on Elegit by Ejectment.
• * 1.32

  Ejectment a∣gainst Tenant by Elegit in case of holding over, not so of a Judgment, and why.
• * 1.33

  By Intruder.
• * 1.34

  Stranger may enter, notwith∣standing Judg∣ment in Infor∣mat' in Intru∣sion.
• * 1.35

  Judgment in Intrusion, what.
• * 1.36

  The Lessee of the King.
• * 1.37

  By Tenant in Common of one Moiety.
• * 1.38

  Entry taken away by lapse of time for not entring.
• * 1.39

  By a Person outlawed.
• * 1.40

  By Executors.
• * 1.41

  The Bail lets Lands to B. Judgment is against the Principal, and Extent on the Lands leased. B brings Eject∣ment.
• * 1.42

  Where the Issue in Tail is 〈◊〉〈◊〉 to Exe∣cution on a 〈◊〉〈◊〉. on Sc' fac' retorned, and he comes not in and pleads, he shall not bring his Ejectment.
• * 1.43

  Upon Entry of Grantee of a Rent and Re∣tainer till Satis∣faction for Ar∣rear, he may upon such In∣terest quous{que} 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.
• * 1.44

  By Tenant at Will.
• * 1.45

  By Cesty que Trust.
• * 1.46

  By a Vendee of the Com∣missioners of Bankrupts.
• * 1.47

  Summonit. for Attachment, is Error after Verdict.
• * 1.48

  Aliter if there be no Original.
• * 1.49

  Original taken out before the Cause of Acti∣on, is Error.
• * 1.50

  Where Amend∣ment shall be by the Papre-Book, or not.
• * 1.51

  Original Teste the same day of Ejectment.
• * 1.52

  Of Amend∣ments of Ori∣ginals in this Action.
• * 1.53

  If the Paper∣Book be per∣fect, tho' the Bill upon the File be not per∣fect, yet it's amendable af∣ter Verdict.
• * 1.54

  Judgment a∣gainst the ca∣sual Ejector for want of Ap∣pearance.
• * 1.55

  Infant, how to appear.
• * 1.56

  Infant, how to sue or defend.
• * 1.57

  The Difference between Guar∣dian and Pro∣chein Amy. Want of
• * 1.58

  Pledges not assigned for Error, because Diminution was not pray'd.
• * 1.59

  Common Bail entred after the Attorney was dead.
• * 1.60

  Stat. 13 Car. c. 2.
• * 1.61

  When common Bail to be filed.
• * 1.62

  Imparlance.
• * 1.63

  Who was ac∣counted an E∣jector formerly.
• * 1.64

  The new course in Ejectments.
• * 1.65

  The old way of Sealing Lea∣ses of Eject∣ment.
• * 1.66

  By Corporati∣on.
• * 1.67

  By Baron and Feme.
• * 1.68

  Ejectment in Inferiour Courts.
• * 1.69

  Tryals below, how.
• * 1.70

  Where the Freeholds are several, the Plaintiff must sever his Acti∣on.
• * 1.71

  The Defendant not to confess Lease. Entry and Ouster for any more than is in his own Possession.
• * 1.72

  The Inconve∣nience of the new Course of leaving Decla∣rations.
• * 1.73

  In what case the Court will give leave to retract the ge∣neral Confessi∣on of Lease, Entry and Ou∣ster.
• * 1.74

  Of the Defen∣dant's Refusal to confess Lease, Entry and Ouster.
• * 1.75

  To pay no Costs.
• * 1.76

  Where confes∣sing Lease, Entry and Ou∣ster, will sup∣ply an actual Ouster, or not.
• * 1.77

  The Rule to confess Lease-entry and Ou∣ster, does not extend to con∣fess actual En∣try upon a Lease which is the Title.
• * 1.78

  The Defendant to give a Note of what is in his Possession.
• * 1.79

  Difference be∣tween the Course in the King's Bench and Common Pleas.
• * 1.80

  He that is made Defendant in Ejectment, not to be charged with Actions by the by.
• * 1.81

  Motions to t••r the Plaintiff, and why.
• * 1.82

  After Default in Ejectment the Defendant may confess Lease, Entry and Ouster.
• * 1.83

  Enlargement of the Lease for a longer Term by the Court.
• * 1.84

  Virtute cujus he entred.
• * 1.85

  How the Lease to be made where there are several parts uncertain claimed.
• * 1.86

  Lease to try Title, no Ma∣tenance.
• * 1.87

  De Do••••••
• * 1.88

  De Tenemento.
• * 1.89

  Where the Plaintiff may aid himself by release of part.
• * 1.90

  De Burgo.
• * 1.91

  De Cubicule.
• * 1.92

  De Repositorio.
• * 1.93

  De Capella.
• * 1.94

  De septem Mes∣suagiis sive Tenementis.
• * 1.95

  De uno Messua∣gio sive Tene∣mento vocat'.
• * 1.96

  De Coquina.
• * 1.97

  De Cotagio.
• * 1.98

  De Pomario▪
• * 1.99

  De molendinis.
• * 1.100

  De pcciaterrae.
• * 1.101

  De Manerio.
• * 1.102

  De Crofto.
• * 1.103

  De uno Clauso.
• * 1.104

  De tribus Roods of Land.
• * 1.105

  Parcella tarrae.
• * 1.106

  Regula.
• * 1.107

  It's not distin∣guished how much of Pa∣sture, and how much of Mea∣dow, ergo ill.
• * 1.108

  Acres accord∣ing to Statute-measure.
• * 1.109

  De duabus acris fundi, Anglice, Hop-ground.
• * 1.110

  De decem acris Pisarum.
• * 1.111

  De 300 Acres of Waste.
• * 1.112

  De prima Ten∣sura.
• * 1.113

  De Cole-mine.
• * 1.114

  De un. Boillary of Salt.
• * 1.115

  De R••vulo aquae cursu.
• * 1.116

  De Profit ap∣prender.
• * 1.117

  De Libera Pischaria.
• * 1.118

  De 100 Acres of Bogg.
• * 1.119

  In villis & ter∣riteriis.
• * 1.120

  De 50 Acres of Mountain in Ireland.
• * 1.121

  De 40 Acris bosci, & 40 A∣cris subbosci.
• * 1.122

  De omnibus Decimis. De quadam portione D. 〈◊〉〈◊〉.
• * 1.123

  De 20 Acris Jampnorum & Bruere.
• * 1.124

  De una Virga∣ta terrae.
• * 1.125

  De Pannagio.
• * 1.126

  De Herbagio.
• * 1.127

  De libera War∣renna.
• * 1.128

  De Moiety of 20 Acres of Land.
• * 1.129

  De uno stabulo
• * 1.130

  Separalis Pi∣scharia usque ad C.
• * 1.131

  De Capella.
• * 1.132

  Of an House and Land in quodam campo juxta le Castle∣hill.
• * 1.133

  De 10 Hides of Land. Carucat. terrae what.
• * 1.134

  De Messuag. & Tenement.
• * 1.135

  Lighthouse.
• * 1.136

  De Close of Meadow.
• * 1.137

  600 Acres of Fen-Marsh, Meadow, arable L••••d.
• * 1.138

  De 20 villis & terris in Ire∣land.
• * 1.139

  De messuagio includes a Gar∣den.
• * 1.140

  De virgata terrae.
• * 1.141

  Moor or Mea∣dow.
• * 1.142

  De Common and Pisdhary.
• * 1.143

  Variance be∣tween the Im∣parlance-Roll and Issue Roll, as to the Com∣mencement of the Lease.
• * 1.144

  The Impar∣lance-Roll is the material Declaration.
• * 1.145

  The first De∣claration is most material.
• * 1.146

  Simul cum.
• * 1.147

  Entry and Ejectment supposed before the Commence∣ment of the Lease.
• * 1.148

  This Action is grounded on two things (viz.) the Lease and the Ejectment.
• * 1.149

  Virtute cujus & iisdem die & anno he e∣jected him, how construed.
• * 1.150

  Virtute cujus.
• * 1.151

  Virtute cujus. how taken.
• * 1.152

  Virtute cujus & praetextu cujus, he entred.
• * 1.153

  Commence∣ment.
• * 1.154

  Habend. à die datus expound∣ed.
• * 1.155

  Uncertain Li∣mitation of the Commence∣ment of the Lease.
• * 1.156

  No day of the Delivery shew∣ed.
• * 1.157

  Variance.
• * 1.158

  In what Vill.
• * 1.159

  Per nomen.
• * 1.160

  When the Lease shall be intended to be delivered on the day of the Demise, and not of the Date.
• * 1.161

  Virtute cujus & praetextu cujus he entred; the difference be∣tween them.
• * 1.162

  Et postea how expounded.
• * 1.163

  Ejectment of the 4th part of an House in 4 parts to be divided, and declares de te∣nementis prae∣dictis.
• * 1.164

  Quod demise∣runt.
• * 1.165

  Coheirs de∣clare by the Lessee of a Lessee, and why.
• * 1.166

  Two as Joynt-tenants, and one as Tenant in Common, demise the Commons, in such Cases how to declare.
• * 1.167

  Verdict.
• * 1.168

  Presidents not to be changed.
• * 1.169

  Vicar-General.
• * 1.170

  A new Decla∣ration deliver∣ed on the Es∣soyn-say.
• * 1.171

  The Declara∣tion is deliver∣ed after the Essoyn-day, and the Conse∣quence.
• * 1.172

  What day the Bill was filed, is examinable, whether after the day of the Lease, tho' it's the same Term.
• * 1.173

  If the Owner prays to be made Defen∣dant, the De∣claration to be entred as of the same Term, but no new Impar∣lance.
• * 1.174

  Where Copies of the Declara∣tion need not be paid for.
• * 1.175

  Lease not war∣ranted by the Declaration.
• * 1.176

  Declaration.
• * 1.177

  Argument.
• * 1.178

  Argued at the King's Bench before Lord C. J. Holt, &c.
• * 1.179

  Pulestone and Goodluck.
• * 1.180

  Mich last.
• * 1.181

  15 Car. 1. Haslefoot and Cade, after Ver∣dict the day in Record is al∣tered after Verdict.
• * 1.182

  14 Car. 2.
• * 1.183

  Declaration a∣mended after Plea, without paying Costs.
• * 1.184

  After Verdict and Judgment no Amendment of a Declara∣tion.
• * 1.185

  Aliter in Judg∣ment and Acts of the Court.
• * 1.186

  (Tenements) include a Re∣ctory.
• * 1.187

  Declaration of an House lying in two Parishes, and the House lies in one, it's good.
• * 1.188

  It must be al∣ledged in what Vill the Tene∣ments are.
• * 1.189

  Where the Per∣nomen is not good.
• * 1.190

  Forma praedict' how construed.
• * 1.191

  Declaration need not be of more Acres than he was ejected.
• * 1.192

  One fictitious Lease to A. and another to B. the same term, the last is not good.
• * 1.193

  Declaration a∣gainst two, ex∣pulit.
• * 1.194

  The Omission of vi & armis in the Decla∣ration.
• * 1.195

  The Omission of Extratenet in the Decla∣ration.
• * 1.196

  Demand of a part without shewing into how many parts divided.
• * 1.197

  Declaration in Ejectment with Quod cum, is good, not so in Trespass.
• * 1.198

  De Herbagio.
• * 1.199

  Herbage does not include all the Profits of thd Soil.
• * 1.200

  Wart ss.
• * 1.201

  Derb ss.
• * 3.1

  No Judgment against the ca∣sual Ejector but by motion of the Court.
• * 3.2

  What is to be done after the Declaration delivered.
• * 3.3

  That the Plain∣tiff had another Ejectment de∣pending.
• * 3.4

  Action com∣menced▪ and the Term ex∣pires pendant the Suit.
• * 3.5

  Entry of the Plaintiff hang∣ing the Writ.
• * 3.6

  Entry after the Verdict, and before the day in Bank, is not Error.
• * 3.7

  Abate, because he shews not in which of the Vills the Lands lie.
• * 3.8

  After Impar∣lance no Plead∣ing in Abate∣ment, and why.
• * 3.9

  Reg. Where a Man pleads in A∣batement, he ought to give to the Plaintiff a better Writ.
• * 3.10

  Ejectment a∣gainst Baron and Feme; Baron died since the Nisi prius, and before the day in Bank, the Action continued a∣gainst the Wife.
• * 3.11

  Where the Plaintiff by his demand, con∣fesseth the Writ abateable.
• * 3.12

  Entry before the Nisi prius to be pleaded at the Assises.
• * 3.13

  Difference be∣tween Entry after Verdict and Death.
• * 3.14

  Not abate by the Death of the Lessee.
• * 3.15

  Regula, for a Plea to the Ju∣risdiction of the Court.
• * 3.16

  Al' Jurisdict'.
• * 3.17

  Cinque-Ports.
• * 3.18

  Travorse.
• * 3.19

  Cinque-Ports.
• * 3.20

  〈◊〉〈◊〉. Conisance not allowable on Suggestion, but it must be a∣verred on Re∣cord.
• * 3.21

  It must be a∣verred or pleaded, and may be, after Imparlance in Ejectment.
• * 3.22

  Where Coni∣sance of Plea not allowed of in Ejectment.
• * 3.23

  Part within and part without the Cinque-Ports, and de∣mur.
• * 3.24

  Where Non di∣misit pleaded¦ed in Eject∣ment.
• * 3.25

  Why the new Rule of confes∣sing Lease, was introduced.
• * 3.26

  Prescription must be to the five Ports, and not to F. only.
• * 3.27

  Ancient De∣mesne a good Plea in Eject∣ment, and why.
• * 3.28

  Whether An∣cient Demesne is pleadable after Impa∣lance.
• * 3.29

  Regula.
• * 3.30

  Conclusion of Plea.
• * 3.31

  New Defendant not to plead Ancient De∣mesne after the former Impar∣lance.
• * 3.32

  Plea of Ancient Demesne al∣lowed the same Term,
• * 3.33

  And how.
• * 3.34

  Release puis darrein Conti∣nuance before the Justices of Nisi prius▪ they can not take it.
• * 3.35

  Demurrer a Confession of the Entry.
• * 3.36

  Release plead∣ed at the day of the Argu∣ment.
• * 3.37

  Entry puis dar' Cont' pleaded at the Nisi pri∣us, the Plea is receiveable.
• * 3.38

  By this Plea. the first Issue of Not guilty is discharged.
• * 3.39

  Bill of Excep∣tion.
• * 3.40

  The Defendant shall not have Aid of the King, and why.
• * 3.41

  Defendant shall have Aid of a common Per∣son.
• * 3.42

  A Writ not to proceed (Regi∣na inconsulta) allowed.
• * 3.43

  In such Case where the King's Trial of Right to be dismissed.
• * 3.44

  Recovery and Execution in a former Action pleaded in Bar.
• * 3.45

  Several Issue.
• * 3.46

  In this Action not to plead specially with∣out Consent of the Plaintiff.
• * 3.47

  Defendant not to plead till Costs assessed in a former Action was paid, and Se∣curity for new Costs.
• * 3.48

  Bar in one E∣jectione Firme, how a Bar in another.
• * 3.49

  Recovery in one Ejectione Firme a Bar in another.
• * 3.50

  2 Defendants, one confesseth, the other pleads in Bar, he can∣not leave the one, and pro∣ceed against
• * 3.51

  the other. The Juror had bought Land of the Eessor.
• * 3.52

  Cousin to the Lessor.
• * 3.53

  Lessor Servant to the Sheriff.
• * 3.54

  The Sheriff Cousin to the Plaintiff.
• * 3.55

  That a Juror had married the Cousin-german of A.
• * 3.56

  Elisors.
• * 3.57

  That the Les∣sor of the Plaintiff is High-Sheriff, a principal Challenge.
• * 3.58

  Elisors.
• * 3.59

  Challenge of the Array to the Lessor.
• * 3.60

  Note.
• * 3.61

  Challenge for Default of Hund••edors on Trial at Bar.
• * 3.62

  The Issue of Not guilty re∣fers to the E∣jectment where the Land lies.
• * 3.63

  Ven' fac' a∣mended.
• * 3.64

  The Vill and the Parish in∣tended all one.
• * 3.65

  Difference in Law between a Sirname and a Name of Bap∣tism.
• * 3.66

  Venire fac' a∣mended.
• * 3.67

  Another Per∣son sworn on the Jury, who was not return∣ed, it's no Error because Estopple.
• * 3.68

  Where it shall not come de Corpore Comi∣tatus.
• * 3.69

  Where the Sheriff is of Affinity to the Defendant.
• * 3.70

  Visne de For∣resta.
• * 3.71

  The Wife found Not guilty, and a Special Ver∣dict as to the Baron, which was insufficient, a Venire fac' de nove award∣ed for both, and why.
• * 3.72

  Stat. W. 2. c. 27.
• * 3.73

  In what Case no Verdict shall be entred.
• * 3.74

  One Defendant pleads Not guilty, the o∣ther demurs; no Judgment upon the De∣murrer till the Issue be tried.
• * 3.75

  Writ to pro∣hibit the Trial, Rege inconsul∣to.
• * 3.76

  Stat. 27 H. 8. Marches.
• * 3.77

  Consent to al∣ter the Tryal entred upon the Roll.
• * 3.78

  New Tryal de∣nied, and why.
• * 3.79

  Consent to a Tryal in a Fo∣reign County.
• * 3.80

  Nonsuit at Nisi prius discharg∣ed.
• * 3.81

  A Tryal by Consent in other County than where the Land lies, is good in Eject∣ment.
• * 3.82

  Tryal in Lon∣don of Lands in Middlesex.
• * 3.83

  Moved in Ar∣rest of Judg∣ment, that the Lease was made at B. of Lands in another County▪ and the Plaintiff was not in Possession.
• * 3.84

  In the King's Case, 〈◊〉〈◊〉 shall be in the Exchequer, tho' the ••and lie in Wales.
• * 3.85

  Tryal by Mit∣timus in the County Pala∣tine.
• * 3.86

  Trustee.
• * 3.87

  Interest in E∣quity.
• * 3.88

  Parishioners.
• * 3.89

  Witness had the Inheritance
• * 3.90

  Coparceners.
• * 3.91

  Copyholder in Reversion after an Estate Tail.
• * 3.92

  Trespass.
• * 3.93

  Estate at Will.
• * 3.94

  Executor of the grant of a Rent.
• * 3.95

  The Witness Sells part of the Lnd before Tryal.
• * 3.96

  Witness claim∣ed Estate by Title Para∣mount both there Titles.
• * 3.97

  One who had Estate at Will to prove a Livery.
• * 3.98

  Father a Wit∣ness for the Son.
• * 3.99

  In what Case Sollicitor, &c. not to give Evidence a∣gainst his Cly∣ent.
• * 3.100

  Record shewed it Court.
• * 3.101

  Long Possessi∣on.
• * 3.102

  Copy of a Re∣cord.
• * 3.103

  Exemplifica∣cation.
• * 3.104

  Scyrograph of a Fine.
• * 3.105

  Fine and Non-claim.
• * 3.106

  Fine, Recovery.
• * 3.107

  Copy of a Re∣covery.
• * 3.108

  No Tenant to the Praecipe proved.
• * 3.109

  Inspeximus.
• * 3.110

  Inspeximus.
• * 3.111

  Conviction of a Recusant, the Record being burnt, proved in Evidence.
• * 3.112

  Fieri fac' pro∣ved in Evi∣dence.
• * 3.113

  Elegit must be shewed.
• * 3.114

  Transcript of a Record, or Inrolment of a Deed.
• * 3.115

  Doomsday-Book.
• * 3.116

  Deed proved by Copy or Testimony.
• * 3.117

  Deed cancelled.
• * 3.118

  Lease and Re∣lease.
• * 3.119

  Copy out of a Leiger-Book no Evidence.
• * 3.120

  Recital of the Lease.
• * 3.121

  Counterpart of a Lease.
• * 3.122

  Seals broken off.
• * 3.123

  Copy of Court-Roll.
• * 3.124

  Difference be∣tween pleading a Deed, and giving it in Evidence.
• * 3.125

  A Deed made before time of Memory. Ancient Deed.
• * 3.126

  Will. Probate.
• * 3.127

  Bill of Excep∣tions on the Probate of a Will.
• * 3.128

  Bill preferred by the Heir a∣gainst the De∣visee, setting forth the Will.
• * 3.129

  Where a Copy of a Bill shall be read as Evi∣dence.
• * 3.130

  Answer 'good Evidence a∣gainst the De∣fendant himself, but not against other Parties.
• * 3.131

  Infant's Answer by Guardian, not to be read in Evidence against the Infant.
• * 3.132

  Depositions no Evidence, if the Party be alive.
• * 3.133

  Depositions no Evidence, with∣out an Answer put in.
• * 3.134

  Depositions be∣fore Commissi∣oners of Bank∣rupts, no Evi∣dence at a Tryal.
• * 3.135

  Exemplificat' 〈◊〉〈◊〉 Depositio••••
• * 3.136

  Examination taken before Issue joyned, no Evidence, Hardr. 315. Brown's Case.
• * 3.137

  Depositions de bene esse.
• * 3.138

  Decree or De∣cretal-Order.
• * 3.139

  Regula.
• * 3.140

  Collateral Warranty gi∣ven in Evi∣dence.
• * 3.141

  Condition to defeat a Free∣hold found by Jury.
• * 3.142

  Estopple found by Jury.
• * 3.143

  As to a Recto∣ry the taking of Tithes only no good Evi∣dence of Eje∣ment.
• * 3.144

  What things a Parson in the Ejectment of a Rectory must prove.
• * 3.145

  Institution without pre∣sentation pro∣ved no Evi∣dence.
• * 3.146

  Evidence as to an Appro∣priation.
• * 3.147

  Where con∣stant enjoy∣ment good Evidence.
• * 3.148

  What entry shall be intend∣ed and need not be proved
• * 3.149

  Extent of a Rectory on Elegit.
• * 3.150

  Defendant not to give in Evi∣dence, a for∣mer Mortgage made by him∣self.
• * 3.151

  Long Possessi∣on.
• * 3.152

  Whether par∣••el of a Prio∣••••y Certificate.
• * 3.153

  Lease by two, and one was Lessor for life remainder to the other.
• * 3.154

  Lease by two, where one had nothing in the Land.
• * 3.155

  By Joynt Lease, and they are Tenant in Common.
• * 3.156

  Copartners.
• * 3.157

  The Acres and Lease of a Moiety.
• * 3.158

  Verdict to be taken accord∣ing to the Title.
• * 3.159

  Variance as to time.
• * 3.160

  Evidence of fewer Acres then delcared.
• * 3.161

  Ejectment of Meadow and Pasture, and the Evidence is de Herbegio and Pannagio.
• * 3.162

  Joynt Lease, by Tenants in Common.
• * 3.163

  Demurrer on Evidence.
• * 3.164

  In the King's Case.
• * 3.165

  Council to sub∣scribe the Points in Que∣stion. Special Ver∣dict.
• * 3.166

  Of finding Deeds in haec ••••erba.
• * 3.167

  Attachment against the De∣fendant, be∣cause he would not bring in his Evidences.
• * 3.168

  Estoppels found by the Jury.
• * 3.169

  Priority of Possession where a good Title.
• * 3.170

  Intendment.
• * 3.171

  Prout Lex po∣stulat.
• * 3.172

  If the Defen∣dant hath pri∣mer Possession first, he shall not have Judg∣ment if no o∣ther Title be found for him
• * 3.173

  Priority a suf∣ficient Title.
• * 3.174

  Where primer Possession makes a Dissei∣sin.
• * 3.175

  In Ejectment prior Possession a good Title against the King's Presen∣tation, not so in a Quare Impedit.
• * 3.176

  Si constare po∣terit that it is the same Land, it is good.
• * 3.177

  The Special Conclusion of a Special Verdict, shall aid the Imperfections of it.
• * 3.178

  Intent.
• * 3.179

  Where the Ver∣dict is good, and the Con∣clusion ill. Diversity be∣tween a gene∣neral Conclu∣sion and a spe∣cial Conclusion.
• * 3.180

  A Special Ver∣dict may make the Declaration good.
• * 3.181

  Lease.
• * 3.182

  Verdict to be taken accor∣ding to Intent.
• * 3.183

  When the Ver∣dict concludes specially on one point, the Court shall doubt of no more than the Jury doubts, securs where it concludes it the General. General con∣clusion depends upon all the Points of the Verdict.
• * 3.184

  Reversion shall be intended to continue.
• * 3.185

  Where a Life shall be intend∣ed to be in be∣ing.
• * 3.186

  Jury find vir∣tute Literar' do not find they were un∣der Seal.
• * 3.187

  What shall be presumed un∣less the con∣trary be shew∣ed.
• * 3.188

  Devise.
• * 3.189

  Bargain and Sale.
• * 3.190

  Extent.
• * 3.191

  That the In∣terest of the Lands came to the Lessor, but shews not how.
• * 3.192

  Statute.
• * 3.193

  In a Special Verdict all ne∣cessary circum∣stances shall be intended.
• * 3.194

  A Life
• * 3.195

  Some things shall not be intended.
• * 3.196

  Difference be∣tween the Con∣dition and Li∣mitation of an Estate, as to the finding by the Jury.
• * 3.197

  Finding the substance of the Issue is sufficient.
• * 3.198

  Manor in re∣putation, and not in strict Law.
• * 3.199

  What one can∣not plead shall be found by Verdict.
• * 3.200

  Verdict by pre¦sumption.
• * 3.201

  To make a Re∣mitter, there must be a new Entry. Prout lex pe∣stulat.
• * 3.202

  The time of the Entry of the Plaintiffs Lessor.
• * 3.203

  Prout lex po∣stulat.
• * 3.204

  Where actual Ouster must be ••ound.
• * 3.205

  Ouster Disse∣sin.
• * 3.206

  Entry by a Colledge how to be found.
• * 3.207

  Prout lex po∣stulat, how far extend.
• * 3.208

  Super totam materiam.
• * 3.209

  Verdict that finds part of Issue, and no∣nothing for the residue is insufficient.
• * 3.210

  Quoad resid.
• * 3.211

  A Verdict of more than de∣clared for.
• * 3.212

  Ejectment of a Manor, how to be brought.
• * 3.213

  Surpluse in a Verdict.
• * 3.214

  The Verdict may be of fewer parts than the Declaration.
• * 3.215

  If the Verdict contain more than the De∣claration, the Plaintiff may release his Da∣mages.
• * 3.216

  As to a Manor.
• * 3.217

  If several things are laid in E∣jectione Firme, and the Jury find the De∣fendant guilty in one, the Plaintiff shall have Judgment of that.
• * 3.218

  Where the Ju∣ry may con∣clude upon a Moiety or not.
• * 3.219

  Do not find Heir.
• * 3.220

  Part of an House.
• * 3.221

  The Court must be in∣formed of the Certainty, and it ought to ap∣pear to them.
• * 3.222

  Guilty of a Room is good.
• * 3.223

  As to Acres.
• * 3.224

  Quoad, &c.
• * 3.225

  Parcel.
• * 3.226

  It must be cer∣tain in what part the Plain∣tiff must have his Hab. fac. possess. aliter in Trespass.
• * 3.227

  Quoad residu∣um must be certain.
• * 3.228

  De Messuagiis sive Tenementis is ill, and the Verdict helps it not.
• * 3.229

  As to Acres and Parishes.
• * 3.230

  Where ever but one Acre 〈◊〉〈◊〉 found certain, ••ne may release ••ll the rest.
• * 3.231

  Acres in two Vills, and the Jury found the Defendant Guilty, and say not how many lie in one Vill, and how many in another.
• * 3.232

  Jury find on a Demise generally.
• * 3.233

  Count of a Lease for years in Possession, the Jury sound the Lease made on another Day, its against the Plaintiff. Aliter, if it be made to com∣mence at a Day to come.
• * 3.234

  The Plaintiff must make his Title truly.
• * 3.235

  Habend. hence forth.
• * 3.236

  The Averment of the Estate Tail to be found.
• * 3.237

  Where when the party comes in by Limita∣tion of Use▪ it must say, vi∣gore stat.
• * 3.238

  Diversity of names.
• * 3.239

  Wife sound Not guilty, and Special Verdict as to the Husband.
• * 3.240

  Venire de novo.
• * 3.241

  Record of a Special Verdict amended.
• * 3.242

  Postea where amended.
• * 3.243

  Non-suit ••o•• default of War∣rant to try the Cause not Re∣corded.
• * 3.244

  Record of Nisi prius, variance from the Roll not amenda∣ble.
• * 3.245

  Regular.
• * 3.246

  Release of Damages.
• * 3.247

  Warranty.
• * 3.248

  Executors not to pay Costs.
• * 3.249

  Feme liable to pay Costs on Baron Death.
• * 3.250

  The Lessor of the Plaintiff where to pay Costs.
• * 3.251

  Tenant in Pos∣session liable to pay Costs by the Law.
• * 3.252

  In Judgment against his own Ejector, no Cost to be paid by the Tenant in Possession.
• * 3.253

  Allegation by the Plaintiff to save his Cost, not al∣lowed.
• * 3.254

  The Plaintiff not to take ad∣vantage of his own insufficient Declaration.
• * 3.255

  Costs on Stat. 8 Eliz. on Nonsuit, and the Stat. mis∣taken.
• * 3.256

  Costs for want of Continuan∣ces entred.
• * 3.257

  When Nonsuit shall be for want of a De∣claration.
• * 3.258

  There need not be 15 days between the Teste-day and Day of Retorn.
• * 3.259

  Infant Lessor pays Costs.
• * 3.260

  The sole Re∣medy for Costs in the first Try∣al is by Attach∣ment, unless the second Tryal be in the same Court after a Verdict.
• * 3.261

  Where Costs are confessed on Lease, Entry and Ouster, &c. and that the other did not.
• * 3.262

  The Entry.
• * 3.263

  The Writ of Error lies upon the Judgment before the Re∣torn of the Writ of Enqui∣ry, and why.
• * 3.264

  Abatement by Death after Judgment or pendant Error, but not after Affirmance.
• * 3.265

  Note,
• * 3.266

  Quod recuperet possessionem ter∣mini.
• * 3.267

  How the Entry is when part is made pro Quer', and part a∣gainst.
• * 3.268

  Quod Def. sit quietus.
• * 3.269

  Quod Def. re∣maneat inde∣fens'.
• * 3.270

  Against several Ejectors.
• * 3.271

  The Plaintiff shall be in Misericordia but once.
• * 3.272

  One of the Plaintiffs died during a Curi: advisare.
• * 3.273

  The Death of one Defendant shall not abate the Writ.
• * 3.274

  Ejectione Baron and Feme, Ba∣ron dies.
• * 3.275

  Record where not to be a∣mended.
• * 3.276

  One Defendent dies after Issue joyned.
• * 3.277

  Suggestion entred on the Roll, one De∣fendant being dead after Non-suit.
• * 3.278

  Ejectment a∣gainst seven, and one dies hanging the Writ and Er∣ror brought.
• * 3.279

  After Verdict and before Judgment the Plaintiff dies and Judgment his given for him the same Term.
• * 3.280

  'The Plaintiff dies after Ver∣dict and Judg∣ment was not staid and why.
• * 3.281

  What notice the Court takes of the Lessor of the Plaintiff.
• * 3.282

  Ejectment for the whole, and a Title but to a Moiety, Judg∣ment shall be for the whole.
• * 3.283

  Judgment for the whole where it ought to be for a Moiety.
• * 3.284

  More Damages found than the Plaintiff counts.
• * 3.285

  Against Gar∣dian and In∣fant qd. capi∣antur.
• * 3.286

  Infant appear∣ed be Attorney
• * 3.287

  Not severing and intire Da∣mages.
• * 3.288

  Versus Baron and Feme quod capiantur, tho' the Baron be found Not guilty.
• * 3.289

  Vi & armis left out in the Declaration.
• * 3.290

  Writ of Enqui∣ry of Damages, without saying, Quod capiatur.
• * 3.291

  Plaintiff brings a Writ of Error, and the Judg∣ment is rever∣sed. What Judgment he shall have.
• * 3.292

  Before Judg∣ment the Lease expires, the Plaintiff shall have Judgment for Damages.
• * 3.293

  Twenty Acres entred for ten Acres.
• * 3.294

  Quod recuperet terminum left out.
• * 3.295

  Variance of Parcels.
• * 3.296

  Amendment.
• * 3.297

  Default of the Clerk.
• * 3.298

  Amendment for Misprision of the Clerk.
• * 3.299

  Two Defen∣dants, one con∣fesseth, the other pleads Not guilty.
• * 3.300

  Scire fac' upon Judgment in Ejectment may be brought by the Admini∣strator of the Lessee, or Les∣sor himself.
• * 3.301

  Recovery by the Husband in Ejectione of the Wife's Term.
• * 3.302

  After Judgment Court of Equi∣ty not to re∣lieve the Mort∣gagor.
• * 3.303

  No Judgment upon Nihil di∣cit, but upon Motion in Court.
• * 3.304

  Declaration is of that Term when the Te∣nant appears.
• * 3.305

  A Trick to gain possession.
• * 3.306

  When Judg∣ment against ones own Eje∣ctor to be en∣tred.
• * 3.307

  Judgment a∣gainst ones own Ejector for Lands in Com' Chester.
• * 3.308

  1 Keb. 579.
• * 3.309

  By whom made out and when.
• * 3.310

  Plaintiff at his own Peril to be put in Possessi∣on of the Acres sound.
• * 3.311

  How the She∣riff must deli∣ver it.
• * 3.312

  How the She∣riff is to esteem the Acres.
• * 3.313

  Where delive∣ry of one Mes∣suage in the name of all by the Sheriff is suffi∣cient or not.
• * 3.314

  Where the Sheriff is to give all the Acres in par∣ticular.
• * 3.315

  How the She∣riff is to give Possession of Rent or Com∣mon.
• * 3.316

  Habere facias Possessionem, good without return.
• * 3.317

  How Possession to be given of House, Land of Rent
• * 3.318

  Habere fac. Possessionem how awarded into Ireland.
• * 3.319

  Where the Plaintiff shall have a new Habere facias Possessionem.
• * 3.320

  When the Writ of Hab. fac' Possessionem is returned and filed the Court may not award a new Habere fac' Possessionem, and why.
• * 3.321

  New Habere facias Posses∣sionem.
• * 3.322

  It is at the e∣lection of the Sheriff, whe∣ther he will return it or not.
• * 3.323

  Where the first Writ is not fully executed the Court will grant a new 〈◊〉〈◊〉.
• * 3.324

  If the Sheriff delivers more Acres than are in the Writ.
• * 3.325

  Where Habere fac. possession. shall be after the year with∣out Scire fac.
• * 3.326

  Not to be granted after the year, with∣out a motion in Court.
• * 3.327

  Sheriffs Fee.
• * 3.328

  In whose name.
• * 3.329

  What Evidence shall be given in this Action.
• * 3.330

  Writ of En∣quiry for mean profits how a∣bates.
• * 3.331

  In whose name.
• * 3.332

  Where it lies.
• * 3.333

  Ejectment be∣fore Justices in Wales.
• * 3.334

  Of what Error the Court shall not take Coni∣sance sans Cer∣tificate.
• * 3.335

  Variance be∣tween the Writ and De∣claration.
• * 3.336

  Declaration with an Ex∣ception and pleading in such Case.]
• * 3.337

  Variance be∣tween the Re∣cord and the Writ of Error.
• * 3.338

  Death of one Defendant dy∣ing after Issue pleaded, and before Verdict.
• * 3.339

  Nonage in Is∣sue upon Error, where to be tried.
• * 3.340

  Deins Age.
• * 3.341

  〈◊〉〈◊〉 by Release.
• * 3.342

  Release from one of the Plaintiffs in Error, shall bar only him that released it, and why.
• * 3.343

  Amendment of the Judgment before a Certi∣orari awarded in Error.
• * 3.344

  Release of Er∣rors from one of the Plaintiffs in the Writ of Error pleaded, shall bar only him that Re∣leased it, and why.
• * 3.345

  Ejectment a∣gainst the Re∣lease of one shall not bar the other of a Writ of Error, because this is to recover no∣thing, but to have restituti∣on of that which he lost by the Judg∣ment.
• * 3.346

  Outlawry in one of the Plaintiffs plead∣ed in Error.
• * 3.347

  Error without Bail, a super∣sedeas. 13 Car. 2. c. 2.
• * 3.348

  Baron and Feme Lessors. its no Error to alledge the the death of the Wife before ••udgment.
• * 3.349

  The Plaintiff in Ejectment dead before Judgment.
• * 3.350

  The Plaintiff dies between Verdict and Judgment, the Judgment is voidable by Error.
• * 3.351

  The Plaintiff dies after Trial Judgment may be given.
• * 3.352

  Lessor of the Plaintiffmay may have 〈◊〉〈◊〉 Writ of Error.
• * 3.353

  Issue that he that made the Release was not the same person.
• * 3.354

  Release by Ca∣sual Ejector, a fraud.
• * 3.355

  Release by Casual Ejector, a fraud.
• * 3.356

  Ejector disa∣vows the Suit.
• * 3.357

  Error in Irel.