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.

Where, and in what Cases Depositions shall be read at a Tryal, and where not.

Regularly the Depositions in Chancery or Exchequer,* 1.1 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,* 1.2 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,* 1.3 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,* 1.4 988. 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,* 1.5 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,* 1.6 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,* 1.7 which recites the Proceedings; and if it have Bill and Answer, allowed to be read, 1 Keb. 21. Trowel and Castle.

Notes

• * 1.1

  Depositions no Evidence, if the Party be alive.
• * 1.2

  Depositions no Evidence, with∣out an Answer put in.
• * 1.3

  Depositions be∣fore Commissi∣oners of Bank∣rupts, no Evi∣dence at a Tryal.
• * 1.4

  Exemplificat' 〈◊〉〈◊〉 Depositio••••
• * 1.5

  Examination taken before Issue joyned, no Evidence, Hardr. 315. Brown's Case.
• * 1.6

  Depositions de bene esse.
• * 1.7

  Decree or De∣cretal-Order.