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.

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,* 1.1 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.* 1.2 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,* 1.3 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.* 1.4 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;* 1.5 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;* 1.6 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,* 1.7 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,* 1.8 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.* 1.9 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,* 1.10 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,* 1.11 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,* 1.12 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.* 1.13 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;* 1.14 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.* 1.15 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.* 1.16 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.* 1.17 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,* 1.18 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.* 1.19 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;* 1.20 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.

Notes

• * 1.1

  Cousin to the Lessor.
• * 1.2

  Lessor Servant to the Sheriff.
• * 1.3

  The Sheriff Cousin to the Plaintiff.
• * 1.4

  That a Juror had married the Cousin-german of A.
• * 1.5

  Elisors.
• * 1.6

  That the Les∣sor of the Plaintiff is High-Sheriff, a principal Challenge.
• * 1.7

  Elisors.
• * 1.8

  Challenge of the Array to the Lessor.
• * 1.9

  Note.
• * 1.10

  Challenge for Default of Hund••edors on Trial at Bar.
• * 1.11

  The Issue of Not guilty re∣fers to the E∣jectment where the Land lies.
• * 1.12

  Ven' fac' a∣mended.
• * 1.13

  The Vill and the Parish in∣tended all one.
• * 1.14

  Difference in Law between a Sirname and a Name of Bap∣tism.
• * 1.15

  Venire fac' a∣mended.
• * 1.16

  Another Per∣son sworn on the Jury, who was not return∣ed, it's no Error because Estopple.
• * 1.17

  Where it shall not come de Corpore Comi∣tatus.
• * 1.18

  Where the Sheriff is of Affinity to the Defendant.
• * 1.19

  Visne de For∣resta.
• * 1.20

  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.