As to Persons.

One deviseth all his Lands to E. his Wife for Life, the Remainder to F. his Daughter in Tail, the Remainder to the eldest Son of William his Brother in Tail, Remainder o∣ver. E. enters, F. dies without Issue; they find Gertrude Cousin and Heir to F. who le∣vied a Fine, but they find not Gertrude was Heir to the Devisor;* and it may be althô F. was the Daughter, the Devisor might have a Son, or that she was Heir to him by a second Wife, yet that Exception seemed not valid, Cr. El. 642. Hemsley and Price. So in 3 Rep. Sir George Brown's Case, Anthony is found Son but not Heir, and yet without his being Heir, the Plaintiff had no Title: And yet in Cymbal and Sand's Case, Cro. Car. 391. Gimlet and Sands, the Court seemed to be of Opinion, That tho' the Jury found that Humfrey had Issue by Hebell his Wife, John, unicum filium suum, that not finding that he was Heir (it was in case of his be∣ing Heir to a Warranty collateral) was not good; for he might have elder Sons by an∣other Venter, or there might be an Attain∣der, or the Warranty might be discharged Page  207 or released io his Life-time, 2 Rolls Abr. 701. mesme Case.

The Jury found a Special Verdict on a Will, in which they found A. had Issue two Sons B. and C. and do not find which of them was the elder, and which the younger, which is material in the Case. This Verdict is not good; for tho' B. is first named, yet it doth not appear by this that he is the eldest Son, M. 20 Jac. B. R. Peryn and Pearse.

Uncertainty as to part of a House.

The Defendant pleads Not guilty;* the Jury find him not guilty for part, and guilty de tanto unius Messuagij in occupatione, &c. quantum stat super Ripam. Per Cur' the Ver∣dict is insufficient for the Uncertainty; for tho' the Certainty may appear to the Jury, yet that is not enough; the Court ought to give Judgment, & oportet quod res deducatur in judicium.* Had they found him guilty of a Room, it had been good. So if he had been found guilty of a third part, for of them the Law takes notice. And an Ejecti∣one Firme was brought for the Gate-house at Westminster, and the Jury found the Defen∣dant guilty for so much as is between such a Room and such a Room, and it was adjudg∣ed good,* Marsh. Rep. 47. Juxon and An∣drews.

As to Certainty of Acres.

Ejectione Firme was brought of 400 Acres of Land;* and the Jury find the Defendant quoad all besides three Acres parcel tenemen∣torum praedictorum Not guilty;* and quoad the three Acres, they find special matter; and that G. A. the Lessor let the aforesaid three Acres to the Plaintiff, and that he was possessed; and that the Defendant ejected him out of the three Acres,* parcel' tenemen∣torum praedictorum, and they did not find the Ejectment of the aforesaid three Acres, &c. and it may be the Ejectment was of other three Acres; and for this Cause per totam Curiam held ill, Cr. El. 642. Hemsley and Price.

Ejectment of 5 Acres, if the Jury find the Defendant guilty in 8 Perches de terre parcel' tenementorum praedictorum, it's a void Verdict, because uncertain, and no Execu∣tion can be made of Pieces, 2 Rolls Abr. 694. Pawlet and Dr. Redman.

And this is the Difference between Tres∣pass and Ejectment: The Plaintiff declares of Trespass in one Acre in D. and abutts it East, West, North and South. Upon Not guilty the Jury finds the Defendant guilty in dimidio Acrae infra script' the Plaintiff shall have Judgment; and so if they had found but one Foot of the Acre. And it sufficeth to be found in one Moiety of the Acre bound∣ed in this Action, where Damages are only to be recovered. But if it were in Ejectment Page  209 the Verdict had been ill;* for it is not certain in what part the Plaintiff shall have his Ha∣bere fac' possessionem, Yelv. p. 114. Winckworth and Man.

In Ejectione Firme the Plaintiff declares of a Messuage, 3000 Acres of Land, 3000 Acres of Pasture in D. per nomina of the Ma∣nor of Monkall, and 5 Closes per nomina, &c. The Jury give a Special Verdict, quoad four Closes of Pasture containing by Estimation 2000 Acres of Pasture, that the Defendant was not guilty; quoad residuum they find the Matter in Law. This Verdict is imperfect in all; for when the Jury found the Defen∣dant was not guilty of four Closes of Pasture containing by Estimation 2000 Acres of Pa∣sture,* it is uncertain, and doth not appear of how much they acquit him; and then when they find quoad residuum for the special Matter, it is uncertain what that Residue is; so there cannot be any Judgment given. And a Venire fac' de novo was awarded, Cro. Jac' 114. Woolmer and Caston.

In Ejectione Firme de septem Messuagiit sive tenementis,* and Verdict pro Quer', it's ill for the Uncertainty, and the Verdict doth not help it. And Hales refused to let the Jury find for the Plaintiff for the Messuages, and Non culp' for the Tenements. But per Twis∣den had it been de uno Messuagio sive Tene∣mento vocat' The Black Swan, it had been good, because the last part makes it certain, Sid. 195. 2 Keb. 80. Cro. El. 186.

On Special Verdict in Ejectment the Case was,* the Declaration was of several Messua∣ges in the several Parishes of St. Michael, St. Page  210 James, St. Peter and St. Paul, and that part of the Premisses lie in the Parish of St. Peter and St. Paul, and that there is no Parish cal∣led the Parish of St. Peter, nor none cal∣led the Parish of St. Paul. Per Cur' the Copulative (Et) shall be referred to that which is real and hath existence, ut res magis valeat; not to make St. Peter's one Parish and St. Paul another, but to make them both one Parish, and the Words, several Parishes, are supplied by the Parishes before mentioned, as 6 Ed. 3. Praecipe of 10 Acres in A. B. and C. there the Lands must lie in every one of the Vills; but if the Praecipe were de Mane∣rio & de decem Acris in A. B. and C. there it would be well enough, tho' the Manor lay elsewhere, provided that ten Acres lay with∣in the Vills aforesaid, for then the last words are satisfied by the ten Acres, Hardr. 1. 330. Ingleton and Wakeman.

Yet in Thomas and Kenn's Case, P. 38 El. B. R. it's said in Dyer ult. Edit. in margine 34. b. Ejectione Firme upon Title of Land of Sir Hugh Portman; the Count was of an hun∣dred Acres in D. and S. and Non culp' plead∣ed, the Jury found the Defendant ejected him of ten Acres only, and shews not them in Certain, and adjudged a good Verdict, and the Plaintiff had Judgment.

It's a Rule laid down,* 1 Rolls 784. Rhe∣thorick and Chappel's Case, where-ever an A∣cre is but found certain, a man may release all the rest that is uncertain, and nothing is more usual.

Of uncertainty in a Special Verdict, in reference to the Place or Vill.

Ejectione Firme of 30 Acres of Land in D. and S. The Defendant was found Guilty of 10 Acres, and quoad residuum Not Guilty.* And it was moved in Arrest of Judgment, That it was uncertain in which of the Vills those Lands lay; and therefore no Judg∣ment can be given: Sed non Allocat. and ad∣judged pro Quer. For the Sheriff shall take his Information from the party, for what 10 Acres the Verdict was. So is Siderf. 75. If one Dcclares for a 100 Acres of Land in two Vills, and the Jury find the Defendant Guilty, this is good without saying how many Acres lie in the Vill, and how many in the other: And the Sheriff ought to take notice of this at his Peril, in making of Ex∣ecution. And so in Dence, and Dence his Case: It shall be intended, that every Acre of Land named in the Declaration lies in both Vills, for so much is presumed by the Declaration, and the Venire from both Vills, Cro. Car. 467. Portman and Morgan, Sid. p. 75. Yelv. 228. Dences's Case.

Trin. 43. El. Meredith and Brown. It was adjudged in B. R. that in Ejectione Firme, sup∣posing the Ejectment of 10 Acre, and the Jury find the Circumstances but of 4 Acres, the Plaintiff shall recover these 4 Acres. But Dame Baskervile's Case was in 39 Eliz. Assize was brought of a Park containing 60 Acres, and the Jury •ound the Disseis• Page  212 but of 30 Acres, and adjudged against the Plaintiff for all. But note, the Park was entire, Dyer 15. b.

As to time.

It was a great Case between Vernon and Gray. The Ejectment was supposed the first of May; and the Jury found the Ejectment to be circa the first of May. It was held not good, Godb. 125. cited in Yarran and Bradshaw's Case.