Plea puis darrein Continuance.
Ejectione Firme was brought for entring into three several Vills:* 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. Page 120 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,* 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,* 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.* 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 Page 121 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,* 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.* 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 Page 122 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.
