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

CHAP. 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.* 1.1 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,* 1.2 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,* 1.3 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.* 1.4 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,* 1.5 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,* 1.6 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,* 1.7 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,* 1.8 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.* 1.9 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.

Notes

• * 1.1

  Stat. W. 2. c. 27.
• * 1.2

  In what Case no Verdict shall be entred.
• * 1.3

  One Defendant pleads Not guilty, the o∣ther demurs; no Judgment upon the De∣murrer till the Issue be tried.
• * 1.4

  Writ to pro∣hibit the Trial, Rege inconsul∣to.
• * 1.5

  Stat. 27 H. 8. Marches.
• * 1.6

  Consent to al∣ter the Tryal entred upon the Roll.
• * 1.7

  New Tryal de∣nied, and why.
• * 1.8

  Consent to a Tryal in a Fo∣reign County.
• * 1.9

  Nonsuit at Nisi prius discharg∣ed.