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.

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, 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; the Defendant pleads, That Haylsham praedict. ••ubi tenementa jacent, is within the Cinque-Ports where the King's Writ runs not; 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, 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, 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, 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, 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, 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, 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, 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, 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; 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. 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, 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, 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; 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, 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. 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, 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.

Notes

• Regula, for a Plea to the Ju∣risdiction of the Court.
• Al' Jurisdict'.
• Cinque-Ports.
• Travorse.
• Cinque-Ports.
• 〈◊〉〈◊〉. Conisance not allowable on Suggestion, but it must be a∣verred on Re∣cord.
• It must be a∣verred or pleaded, and may be, after Imparlance in Ejectment.
• Where Coni∣sance of Plea not allowed of in Ejectment.
• Part within and part without the Cinque-Ports, and de∣mur.
• Where Non di∣misit pleaded¦ed in Eject∣ment.
• Why the new Rule of confes∣sing Lease, was introduced.
• Prescription must be to the five Ports, and not to F. only.
• Ancient De∣mesne a good Plea in Eject∣ment, and why.
• Whether An∣cient Demesne is pleadable after Impa∣lance.
• Regula.
• Conclusion of Plea.
• New Defendant not to plead Ancient De∣mesne after the former Impar∣lance.
• Plea of Ancient Demesne al∣lowed the same Term,
• And how.