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. VII.

Where in the Declaration a Life must be aver∣red, and where it need not. Of Delivery of Declarations at or after the Essoyne-day. De∣clurations when to be entred, as of the same Term where the Copies need not be paid for. Declarations, when amendable or not. Of ex∣pressing the Vills where the Lands lie. Of the Pernomen. Declaration need not be of more Acres than he was ejected out of. Of the Forms of the Declaration, Vi & Armis omitted, Extr. tenet omitted. The President of De∣clarations in C. B. in B. R. in Scacario. The Indorsement on the Copy to be left with the Tenant, and what the Tenant is to do thereupon. The Rule for confessing Lease, Entry and Ouster in B. C. and in B. R.

IF one do declare upon a Lease in Ejecti∣one Firme, and that by Virtue of that Lease he was in possession of the Lands there∣by let to him until that he was ejected by the Defendant, it is supposed that the Les∣sor who made the Lease to him, was alive at the time of the Action brought, Pract. Reg. 110.

The Plaintiff in Ejectment declared of a Lease for three years, if the Wife of the Plaintiff shall so long live, and does not shew that the Wife is yet in Life; yet per Cur' this being after a Verdict, is made good by the Stat. 21 Jac. of Amendments after Exami∣nation by the Sheriff. And in Arundel's

Case, in Ejectment the Plaintiff declares that the Lady Morley being only Tenant for life, made a Lease to him for three years, if she should so long live; virtute cujus intravit & fuit possessionat' until the Defendant entred upon him, & illum à firma sua praedicta ter∣mino suo nondum finito extratenet, &c. and he did not averr the Life of the Lady Morley. But per Cur' this amounts to an Averment; for he saith his Term is not yet ended, which implies she is alive, and the years not ex∣pired; and this was after a Verdict. But had it been demurred to, it had been more am∣biguous. So Dyer 304. in Ejectione Firme on a Lease, his Supposition that the person ad∣huc seisitus existit, implies his Life, Siderf. p. 61. Palmer Rep. 267, 268. Arundel and Mead. Cro. Jac. mesme case. 2 Browl. 165.

It was the Opinion of the Court in Cro. El. p. 18. Higgins and Grant's Case, That if in Ejectment one declares of a Lease by a Par∣son, he ought to averr his Life; for by his death his Lease is void, but it's now other∣wise, 2 Bulstr. 79. Cr. El. 18. Higgins and Grant.

Of the Delivery of Declarations, Filing and Entry.

The Court,* 1.1 in Car. 2. Snow and Cooley's Case, upon Motion, ordered, That a new Declaration delivered on the Essoyn-day, should be sufficient (the old one being de∣livered before) the Lessee dying, and the Name was changed, there being sufficient

Notice; and this being the Act of God, shall not prejudice, 1 Keb. 755.

If the Declaration in Ejectment be deliver∣ed after the Essoyn-day,* 1.2 it is but entred of that Term (and not of the Term before) and the Plaintiff in such case cannot have Judgment the same Term; but if he doth not move the following Term to have Judg∣ment (especially if any Assises intervene) he cannot have it without new notice left at the House of the Defendant, and the Default made at first, 1 Keb. 721.

If the Declaration in Ejectment be of Michaelmas-Term,* 1.3 which relates to the first day of the Term, yet it's a matter of Evi∣dence, and examinable what day the Bill was filed, and if it was after the day of the Lease, all is well. On a special Verdict it was moved for the Defendant, That the Declaration was in Michaelmas-Term, 2 Jac. 2. and the Demise is laid to be the 30th of October, 2 Jac. 2. and so after the Term began. Note, the Declaration cited an Original, and an Original was produced, Teste 2. Nov. which was after the Demise; and the Prothonotaries informed the Court, That this was frequently allowed, and that no Memorandums of the Originals bearing Teste within the Term, was used to be made upon the Record, Sid. p. 432. Prodger's Case. 2 Ventr. Tonstale and Broad.

It is the Course of the Court in Ejectment, if the* 1.4 Owner of the Land comes in and prays to be Defendant, the Declaration shall be entred as of this Term, altho' it were of the last Term, against the casual Ejector; but yet

being by favour of the Court admitted, he shall have no new Imparlance besides that which the casual Ejector had. And by Hide there is difference between the Tenant in Possession, who is Defendant ex debito on his Prayer, contra of J. S. who is only concerned in Title, 1 Keb. 706. Roch and Plumpton.

If the Declaration filed be paid for,* 1.5 they need not pay for the Copies, and so a Trial at Bar shall not be hindred for want of pay∣ment of the Copies, 2 Keb. 805.

I find a Rule of Court to change the year, thus:

ss. Mich. 13 Car. Ordinat est per Cu∣riam nono die Octob qd quer' narra∣tionem suam in intratione inter par∣tes de Termino St. Trin ult in∣txat in Anno dimissionis emendavit Et ubi per misprisionem Clerici al∣legavit dimissionem fieri duodecimo die Aprilis Anno undecimo Caro∣li fieri debuit Anno duodeeimo & quer' solveret Def. miss per Magi∣str•• Gulston taxand pro emendatio∣ne illa ex motione Magistri Boon.

Lessee for three years makes a Lease for five years in Ejectment to try the Title,* 1.6 and the Jury on special Verdict doubt whether the Defendant be guilty for 3 or 5 years; Per Cur' the Declaration is ill, and the Plain∣tiff can have no Judgment; Per Hale the Lease is good only for three years,* 1.7 and the Defendant shall be guilty for no more, else the Plaintiff would recover Terminum praedict',

which is five years, but no Judgment can be for three years, being not warranted by the Declaration, Tr. 27 Car. 2. B. R. Rowe and Williamson.

Mr. Levett's Case of the Inner-Temple.

• Sir Roger Puleston, Kt. Plaintiff.
• Sir Peter Warburton and others, De∣fendants.

Ejectment upon the Demise of John Levet and his Wife, wherein the Plaintiff declares that John Levett and Margaret his Wife, the 10th of April 1697. demised to the Plaintiff Habend. from the 25th day of March then last past for five years.

THIS was tried at the Bar,* 1.8 and a Verdict for the Plaintiff; and the De∣fendants have moved in Arrest of Judgment,* 1.9 for that the Demise is laid the 10th of Apr. 1697. which is not yet come, whereas it should be 1696. which the Plaintiff hath moved to amend, and the same ought to be amended, &c. for these Reasons, wherein I shall only ap∣ply my self to the Statute of the 16 and 17 of King Charles the Second Cap. 8. which I hum∣bly conceive hath not been sufficiently spoken to in this matter, which saith, That no Judgments shall be staid or reversed after Verdict for any Mistake in the Christian Name, Day, Month or Year, by the Clerk, where the right Name, Sirname, Day,

Month or Year in any Writ, Roll, Plaint or Record preceeding, or in the same Roll or Record are once rightly named, but that all such Omissions, Variations, De∣fects, and all other matters of the like nature, being not against the right of the matter of Suit, nor whereby the Issue or Trial are altered, shall be amended by the Records.

That we are within the Benefit of this Statute, I shall offer this to your Lord∣ship.

The Declaration against the casual Ejector delivered to the Tenants in the Country was right, that expressing the Demise to be the 10th of April 1696. which ought to have been the time mentioned in this Declarati∣on, for all the mistake was only betwixt septimo & sexto; and there is an Imparlance entred on the Roll in Easter-Term last a∣gainst the casual Ejector, which is right.

As in all Actions brought by Bill, the usual Method of proceeding, is to file the Bill or Declaration in the Office; and as all Defects on the Roll are amendable by that, so this being brought by Original instead of Filing a Bill in the Office, an Imparlance is entred on the Roll, and the Method of proceeding is in the same manner, as in the Common Pleas, the Issue is as much amend∣able by the Imparlance-Roll as it would have been by the Bill, if the Action had been brought by Bill.

The Objection made to this,* 1.10 is, That tho' Tenants in Possession being not all du∣ly served in the Country, the Tenants a∣gree to appear so as the Plaintiff would

consent to try it at the Bar, and that there∣upon there was a new Declaration deliver∣ed, which had this Mistake, and seems to inferr, that the former Declaration was waved, and this was altogether a new Pro∣ceeding, wherein the Court was misinform∣ed; for there was no new Declaration de∣livered, and that which the Defendants pro∣duced, was a Copy of the Issue only, and proved nothing but that there was a Mi∣stake, which appears by the Roll, and is admitted by the Plaintiff, otherwise we need not this motion.

Now, my Lord, that the Defendants Ap∣pearance was to the Declaration delivered in the Country, is plain, for there was no other Declaration delivered, nor was there∣in any other for them to appeal to; be∣sides, it appears by the Rule wherein it is written Pulestone and Goodluck, and under that the now Defendants shall be made Defendants in the room of Goodluck, and shall confess Lease, Entry and Ouster for the Lands in that Declaration mentioned, and shall receive a Declaration, and plead the General Issue, and insist upon the Title only; and that if the Plaintiff shall become Nonsuit for default of the Defendants con∣fessing Lease, Entry and Ouster, then that Judgment shall be entred against the Defen∣dant Goodluck, &c.

Now, my Lord, I would know what De∣claration the Defendants were to appear to; it must be a Declaration against Goodluck; and what Lease the Defendants were to con∣fess; it must be the Lease mentioned in

the Declaration against Goodluck; and what Judgment the Plaintiffs were to have, if the Defendants did not confess Lease, Entry and Ouster; it must likewise be upon the Declaration against Goodluck.

Now, my Lord, if the Defendants will shew a Declaration that was delivered them against Goodluck, wherein there was this Mi∣stake, it would be hard upon us; but if they cannot, then the Declaration delivered a∣gainst Goodluck is right, and the demise they are obliged to confess, is the demise in that Declaration, and only mistaken by the Clerk's transcribing it.

Now, My Lord, if the Defendants have confessed a good and right demise, and this hath been tried, then it would be the great∣est hardship in the World, if the Court should not let the Plaintiff have the Benefit thereof; and it is plain that the Demise the Defendants are by Rule to confess, is the Demise in the Declaration against Goodluck. So that, My Lord, if there were no Statute to help it, 〈◊〉〈◊〉 take it with Submission, the Court having tried the Fact, ought to make the Record according to the Fact they have tryed.

As to their consenting to appear for se∣veral of the Tenants that were not duly ser∣ved, on Condition the Plaintiff would try it at Bar; My Lord, that is an Argument against them, and brings us within the Be∣nefit of the Case betwixt Crawley and Parr, where there was a Judgment in Ejectment by Confession, and the Demise laid after the Judgment, and amended after a Writ

of Error brought, because it was a Judg∣ment by Warrant of Attorney; for it should not be supposed that the Defendant gave a Warrant of Attorney to confess a void Judg∣ment.

Now, My Lord, the Defendants consent∣ing to appear, shall never be intended to a void Declaration, but to a good Declaration in order to a fair Trial. And, My Lord, we are the more intitled to the Benefit of it, be∣cause we are Purchasors, for we give a Con∣sideration for it, viz. agreed to try it at Bar, and they themselves opened it so.

As to what was objected, That when the Tenants have appeared to this Declaration in Ejectment, and are made Defendants, it is a new Action, and that the Declaration against the Casual Ejector is rejected, and that therefore this defect cannot be amend∣ed, though right in the Declaration against the casual Ejector:

I give this Answer, that the Declaration against this casual Ejector, is not rejected, but is by the common Rule in Ejectment made part of the Cause, insomuch that if the Plaintiff be nonsuited he shall have his Judgment upon that Declaration, and the Return of the Postea is Warrant for that Judgment; so that by the common Rule in Ejectment they are so tied together, that it is all but one Action, and the now De∣fendants are to stand in the casual Ejector's place. But, My Lord, the Words of the Statute are not so strict which are in any Proceedings precedenti Now, My Lord, the Declaration in Ejectment is a Proceed∣ing,

and it is precedent, and it is within the equitable meaning of the Statute, which in∣tends all Amendments that are by neglect of the Clerk if it appears that they are right in any of the Proceedings, and for that end a Philiser's Note, tho' no part of the Record hath been sufficient to amend by.

And, My Lord, the same may be said when the Defendant is arrested by a Lat. de Placito transgr', and the Plaintiff declares in Debt or Case, and mistakes the Christian Name Sirname, whether shall it be amended by the Lat. and whether the Lat. shall be look∣ed upon to be a Proceeding precedent to the Declaration, because in another Action, and so it would be if a Man be arrested de Pla∣cito transgr', ac etiam Bill', and the Plaintiff declares in Debt only, this is likewise de∣parting from the Writ; but these are war∣ranted by the Practice and Course of the Court, these Processes being made use of only to force an Appearance; and the Plain∣tiff may then declare in Case of Trespass or Debt, as he sees good. Now My Lord, De∣clarations in Ejectment are the same thing, because only made use of to force an Ap∣pearance, and are by the common Rule in Ejectment become no more part of the same Action, than a Lat. is. But this, My Lord, we have a full Answer to; for the Declara∣tion against the now Defendant, is entred on the Roll, and is right.

But with Submission, My Lord, the De∣claration is sufficient to warrant its own Amendment, it being by Original, viz. Que Johan' Levett & Maria eidem Rogero

demiser' ad terminum qui nondum praeteriit, intraver' & ipsum à firma sua praedicta eje∣cer'. Now, My Lord, the Count may be amended by the Original, which is, that the Plaintiff's Lessors had before that time demised the Premisses to the Plaintiff for a Term not then past; and if the Count be made of a Demise then in being, it is all the Amendment we desire. But, My Lord, here it may be objected, When must that Demise bear date and commence? Must the Court set a Date and Commencement to Plaintiff's Demise?

To which I answer, That the Com∣mencement is certain by the Declaration, videlicet, from the 25th of March last, and that must be the 25th day of March last before the Term the Issue is entred on, which is from 96. and then the Date of the Demise must be betwixt Trinity Term, 96. and the 25th of March before, which points directly at the Mistake which is in Michael∣mass. If the 10th of Aril 1697. instead of 1696. and where the Court can by the Re∣cord take notice what was intended; it is the same thing as if it had been once rightly named before, and is within the meaning of that Statute, which after the naming of ma∣ny Mistakes, hath these general words, and all other Mistakes of the like nature, which My Lord, must be of no Signification, if this be not the meaning of this Statute.

And, My Lord, as to this being the fault of the Clerk, I need no Argument to prove it, for the matter shews it self; and the De∣claration against the casual Ejector being

right, proves this the Fault of the Clerk in transcribing this wrong, though the Decla∣ration may properly be said to be the Act of the Client, yet that shall be intended the Declaration against the casual Ejector, that being the first Declaration, and all that is necessary for the Client to instruct his At∣torney in, the rest only depending on the Forms and Practice of the Court, wherein the Attorney needs no further Instructions from his Client.

Now, My Lord, I do admit that the ge∣neral words in this Statute are restrained; that is to say, All other matters of the like nature, not being against the right of the matter of Suit, nor whereby the Issue or Trial are altered. But, My Lord, this Re∣striction hath no relation to the particular defects that were mentioned before, where∣of ours is one, but to the general words on∣ly; and, My Lord, we are within the intent of these general words also.

For this Amendment is not against the Right of the matter of Suit; for that was whether the Plaintiff's Lessor had a Title, and that hath been tried and found for the Plaintiff; nor is the Issue or Trial altered; for had this been amended before Trial, the Defendants must have pleaded the same Plea, and the Trial would still have been the same. The danger only was at the Trial on the Plaintiff's side, whether this was not Cause of a Nonsuit, and therefore it was his Business to have had it amended before Trial for fear of being nonsuited at Trial; but having tried his Cause, and the Right

found with him, he is much more entituled to the Benefit of this Amendment, because it is to support a Verdict; Nay, My Lord, a Verdict that was found according to the Right and Merits of the Cause, which all Courts have been always very tender of.

Lastly, My Lord, I shall offer this to your Lordship. That the matter we pray to a∣mend, is not matter of Substance, yet ought to be amended to avoid Absurdity.

I must confess, that if this had been a De∣mise to commence in futuro, it would have admitted of a greater Argument; but, My Lord, this is a Demise in being at the time of the Declaration, and not yet expired, and so much appears by the Record.

My Lord, the Record is an Issue of Trinity Term 1696. and the Demise is laid the 10th of April, 1697. Habend. from the 25th of March then last past, and the words in the Declaration are dimiser', in the Writ, and demisissent in the Count; and that the Plaintiff entred by Vertue thereof, and was possessed, and the Defendant ejected him, his Term being not ended, &c. all which the Defendant confesses.

This Demise must be before Trinity Term 96. or else the words demiser', demisissent are to no purpose; and it is impossible that be∣fore Trinity Term 1696. the Plaintiff's Les∣sors should have demised the 10th of April 1697. for that time was not come. But it is possible that the 10th of April, 1696. the Plaintiff's Lessors might make a Lease dated the 10th of April 1697. before the time of the date.

And if that be the Construction of it, then this is a Deed from the time of the ex∣ecution, and the Term commences from the 25th day of March before.

Or else this being an impossible date, must be altogether rejected, and then Trinity Term and the 25th day of March being all the times that are certain in the Declaration, the Confession is that betwixt the 25th day of March 1696. and Trinity Term following the Plaintiff's Lessors demised, the date be∣ing no essential part, and then this is a good Demise for five Years from the 25th of March 1696.

Greater Mistakes than these have been a∣mended after Verdict.

Lees and Sir Nathaniel Curson,* 1.11 Bar. in E∣jectment, wherein the Plaintiff's Lessor be∣ing an Infant, the Declaration was, That the Infant demised by his Guardian, which was no Demise, and the Cause being tried at Staff. last Summer Assises, the Defendant's Council insisted on the Mistake, and relied thereon, and it being referred by consent to the Judge, and a Verdict given for se∣curity, the Judge referred the matter to the Court of Common Pleas, who amended it, though never right in any of the Pro∣ceedings.

The Bishop of Worcester's Case in this Court,* 1.12 where there were five Defendants and but three of them pleaded, and after Ver∣dict amended, and the Verdict was record∣ed against two, that no Issue was jonyed a∣gainst in the Record of Ni. pr.

Camberlain against the Hundred of Tun∣dring upon the Statute of Hue and Cry,* 1.13 where it was ordered, That the Record both of the Declaration and Issue should be amended by the Attornies, and this was before Trial.

Ours is a far stronger Case; for this A∣mending, if it had been before Trial, would not have altered the Issue, or any∣wise influenced the Merits of the Cause.

Now, My Lord, we are intituled to the Favour of the Court, in respect we moved this matter before Trial, and were bid by the Court to move it afterwards; and if this had been a fatal matter, the Plaintiff ought to have been nonsuited, which was then insisted on by the Defendants, and de∣nied; and so the Plaintiff expose his Title. paid the Charges of the Jury and other things, which cost him above 100 l. and if he had been nonsuited, was by Rule but to pay Country Costs, and the Plaintiff's Lessors are Purchasors for a valuable Consi∣deration under a Title of above Sixty years Possession. And having now upon a fair Trial, and a full Evidence obtained a Ver∣dict, we hope your Lordship will put them in a Capacity of reaping the Fruit of it.

The Judgment in Ejectment is double, one as to his Damages, upon which the Costs are attendant, and the other as to the Term whereupon his Possession depends; and the Plaintiff may take out two Executi∣ons, one for his Costs, and the other for his Possession. Now if there be cause to stay the Possession, there is more cause to stay

Judgment as to Damages and Costs, because the Issue hath been fairly tried, and the Defendants have confessed that the Plaintiff was in Possession, and that the Defendants did eject him; now if his Term was not commenced, but his Possession tortious, yet he is not to be turned out by a Stranger that hath no Title, as the Defendants were, the Jury having found against them, and the Damages are for the entring upon our Possession and ejecting us.

But the Court said, It could not be a∣mended, and Mr. Levet brought a new Trial and recovered.

Declarations when amendable or not.

In Ejectment where the Title is material,* 1.14 the Plaintiff amended his Declaration after Plea (but while all was in Paper) in the date of his Action, without Costs paying, 1 Keb. 14.

After Verdict and Judgment the Decla∣ration cannot be amended,* 1.15 for that might attaint the Jury: As in Ejectment of the Re∣ctory of H. and other Tenants, virtute cu∣jus intravit in tenementa praedicta. Verdict and Judgment de Rectoria & Tenementis praedict',* 1.16 it cannot be amended; but on such Omission in Judgment or Acts of the Court it were amendable, but not of the Declaration. But in this case the Court conceived it well e∣nough,* 1.17 and that the word Tenements includes

Rectory, whether there be Glebe or not, but not so of a Mannor, Hill. 25 and 26 Car. 2. Bale's Case.

If the Plaintiff in Ejectment declare of an House lying in two Parishes,* 1.18 if the House do lie in either of the Parishes, and do not lie in both of them, yet the Declaration is good; for there is certainty enough in it, Pract. Reg. 110.

It must be alledged in what Vill the Te∣nements are;* 1.19 the Plaintiff declares that P. C. by Indenture apud F. let unto him one House and twenty Acres of Land by the Name of all her Tenements in S. per Cur' the Declaration is not good, because it is not alledged in what Vill the Tenements are; for the naming of the Vill in the Pernomen, was not material, and so Cr. El. 822. Gray and Chapman.

The Plaintiff declares of a Lease of one Messuage ten Acres of Land,* 1.20 twenty Acres of Meadow, twenty of Pasture by the name of one Messuage, ten Acres Prat. be it more or less; after Verdict a Nil cap. per Billam was entred: For upon the matter by the Plaintiff disclosed in his own Declaration he cannot have Execution of the Quantity found by the Jury: for in the Lease there is not but ten Acres demised, and these words in Judgment of Law, cannot be extended to thirty or forty Acres, and the rather because the Land demanded by the Declaration, is of another nature than that mentioned in the Pernomen; for this goes only to the Mea∣dow, and the Declaration is to the arable and Pasture, Yelv. p. 166.

In this Action it was moved in Arrest of Judgment, That the Plaintiff had declared of two Demises, (viz.) that J. S. demised ten Acres of Land to him, and that J. N. had demised ten other Acres of Land to him Habend. for the Term of five Years, &c. and that he entred into the Premisses demi∣sed to him by J. S. and J. N. in forma prae∣dicta. After Verdict upon Not guilty for the Plaintiff, it was objected, That in one of the Demises there is no certain Term or Estate; for the Habend' can only be referred to the Demise of J. S. for that begins a new Sentence; but per Cur' the Habend' shall be a good Limitation of both Demises for five Years, and when it is shewed that the Plain∣tiff entred into the Premisses demised to him in forma praedicta,* 1.21 that is an Averment that all was demised to him, for that it is forma praedicta, 2 Ventr. 2. W. and M.

In Ejectment the Plaintiff need not count of the demise of more Acres than the A∣cres out of which he was ejected;* 1.22 and a demise may be pleaded of any Parcel with∣out mentioning the entire; as if one demise to me two Acres for Term of Years, and I am ejected out of one Acre by a Stranger, Now I shall have Ejectione Firme, and count that one Acre was demised to me, without any mention of the other Acre, 1 Saunders p. 208.

Where one declares on a fictitious Lease to A.* 1.23 for three years, and within the same Term declares of another fictitious Lease to B. of the same Lands, the last is not good; for Trespass for the mean Profits must be

brought in the first Lessee's Name, ut di∣citur.

As to the Form.

Ejectment was against two,* 1.24 and the Decla∣ration was intraverat & expulit; and it was amended, Yelv. 223.

Vi & armis are left out in the Declaration,* 1.25 Cro. El. 340. Griffith and Williams's Case, saith it is but matter of Form, and it is helped after a Verdict; but in Cro. Jac. 36. and Yelv. 223. in Odington and Darby's Case, where vi & armis was left out, and Error was brought in the Exchequer-Chamber, it was not suffered to be amended, but Judg∣ment was reversed. So Godb. 286. and so in Sykes and Coke's Case the Want of vi & armis is not helped by a Verdict; but in Er∣ror in B. R. if upon diminution it be well certified, the Court will amend it, Godb. 286. 2 Bulstr. 35. Cr. Jac. 306. Yelv. 223. Odington and Darby. 1 Keb. 164.

In B. R. the Transcript of Trespass and Ejectment was de Placito Transgressionis & Ejectionis, omitting Firme, it was amended. And in B. R. it would be amended in the Record it self before Removal, 1 Keb. 106.

Exception was taken in Godb.* 1.26 60, 71. be∣cause the Plaintiff did not say in his Decla∣ration Extratenet; but per tot' Cur' those Words were not material; for if the Defen∣dant do put out the Plaintiff, it is sufficient to maintain the Action. So if it be à possessione sua ejecit instead of à firma sua ejecit, it's good; for ejecit à possessione inde, inde hath relation to the Farm, Godb. 60, 71.

In Ejectione Firme the Writ and Declara∣tion were of two parts of certain Lands in H. and saith not, in two parts in three parts to be divided, and yet it was good as well in the Declaration as the Writ; and this difference was taken Per Cur' By intend∣ment and Construction of Law,* 1.27 when any parts are demanded without shewing in how many parts the whole is divided, that there remains but one part not divided; as if two parts are demanded, there remains a third part; and when three parts are divided, there remains a fourth part: But if any de∣mand be of other parts in other Form, there he ought to shew the same specially, as if one demands three parts of five parts, or four parts of six, &c. 13 Rep. 58.

Declaration in Ejectment is Quod cum such an one dimisit,* 1.28 it's good here, be∣cause he cannot have the Action without a Lease; but in Trespass, as Assault and Bat∣tery, &c. it is not so. And Dodderidge took this difference, Where the thing on which the Action is brought, hath continuance, and where the Action is brought for a thing done and past. In Ejectione Firme there the Lease hath still Continuance, and there such a Declaration with a Quod cum, is good, because it is in the Affirmative; but where the thing is past, as Battery, it ought not to be with a Quod cum, 2 Bulstr. 214. Sher∣land's Case.

As for the manner of declaring in respect of the thing demised, vid. supra titulo, Of what things an Ejectment lies: To which I shall add one Case in the Exchequer. Eject∣ment

for so many Acres of Meadow, and so many Acres of Pasture, on Non culp' the Ju∣ry find a Demise de Herbagio & Pannagio of so many Acres.* 1.29 Per Cur' by the same Reason that an Ejectment lies of a Lease of Her∣bage, by the same Reason the Plaintiff ought to declare accordingly; and Herbage does not include all the Profits of the Soil,* 1.30 but only part of it, Hardr. 330. Wheeler's Case in Scacario.

The Form of a Declaration from a Par∣son of Rectory and Tenements in B. R. with an Averment of the Parson's Life, 1 Rep. 149. Chedington's Case.

The Form of a Declaration in Ejectment in the Common Pleas. Mich. 16 Car. 2.

Tempest.

Midd ss. A. B. nuper de London Gen attachiat fuit ad respon∣dend W. I. de plito quare vi & armis unum Messuagium unum Gardinum de∣cem acras terre tres acras prati & qua∣tuor acras pasture cum pertinentiis in H. que S. W. vid eidem W. dimisit ad terminum qui noudum preteriit intravit & ipsum a firma sua predict ejecic & alia enormia ei intulit ad grave damuum ipsius W. & contra pacem Dom Regis

nunc, &c. Et unde idem W. p I. S. At∣tornat suum queritur qd cum predict S. primo die Octobris Anno Regni Dom Regis nunc quinto decimo apud H. predict dimisit prefat W. Tenementa predicta cum pertin habend eid W. & assignat luis a Festo Sancti Michaelis Archangeli tunc ultimo preterito us{que} fi∣nem & terminum quin{que} annorum extunc {pro}xime sequen & plenarie complend & fi∣niend virtute cujus dimissionis idem W. in Tenementa predicta intravit & fuit inde possessionat Et sic inde possessionat existen predict A. postea scilicet eod primo die Octobris Anno Regni dict Dom Re∣gis quinto decimo supradicto vi & armis, &c. in Tenementa p̄dicta cum pertin que p̄dict S. p̄fat W. in forma p̄dicta dimisit ad terminum p̄rict qui nondum preteriit intravit & ipsum a firma sua p̄dicta ejecit ac alia enormia, &c. ad gra∣ve damnum, &c. & contra pacem, &c. On. de dicit quod deteriorat est & damnum het ad valentiam decem Librarum & inde {pro}duc Sectam.

Et p̄dict A. p G. I. Attornat suum ven & defend vim & injuriam quand{que}, &c. I. Lo. us{que} Octab Hillarij.

In the King's Bench.

TH. queritur de Iacobo W.* 1.31 in custod Marr Marese Dom Regis coram ipso Rege existen {pro} eo videst quod cum H. M. Gen ultimo die Ianuarij Anno Regni Dom nostri Caroli secundi nunc Regis Anglie, &c. vicesimo, apud B. in Com predict dimi∣sisset concessisset & ad firmam tradidisset p̄fato T. unum Messuagium & duas A∣••ras Pasture cum pertiu scituat jacen & existen in B. p̄dice habend & tenend renementa p̄dicta cum pertin prefato T. & assignat luis a vicesimo quinto die Decembris tunc ult p̄teris us{que} plenum finem & terminum quin{que} annorum extunc {pro}xime sequen & plen••r̄ & finiend complend virtute cujus quidem dimissionis idem T. in tenementa p̄dicta cum p̄tin intravit & fuit inde possessionat quous{que} p̄dict Iaco∣bus postea scilt eodem ultimo die Ianu∣arij anno Regni dict Dom Regis nunc vicesimo supradict vi & armis, &c. in te∣nementa p̄dicta cum pertinen in & super possessionem ipsius T. inde intravit & ip∣sum T. a possessione sua predict termino suo p̄dict inde nondum finit ejecit expulit & amovit ipsum{que} T. a possessione sua p̄dict extratenuit & adhuc extratenet & alia enormia ei intulit contra pacem dict Dom Regis nunc ad damnum ipsius T. 20 l. Et inde {pro}due Sectam, &c.

In the Office of Pleas in the Exchequer.

A. B.* 1.32 debitor Dom Regis nunc venit coram Ba∣ronibus hujus Scacarij duodecimo die Februarij hoc Termino p C. D. At∣torn suum & queritur p Billam versus E. F. p̄sent hic in Curia eodem die de plito Transgressionis & Ejectionis Firme pro eo videlt qd cum quidam I. B. secundo die Feb Anno Regni dict Don̄i Regis nunc vicesimo primo apud, &c. ({pro}ut supra in B. R.) ad vamnum ipsius A. decem Librarum Quo minus, &c. Et inde pro∣ducit Sectam, &c.

A Copy of the Declaration you must leave with the Occupier of the House and Land, with this or the like Indorsement.

JAmes B. yon may perceive that I am sued for the Messuage and Lands within mentioned, being in your Possession; these are therefore to desire you to defend your Title, or else I shall suffer Judgment to be entred by default.

Or thus.

UNless the Tenant in Possession, or they under whom he claims, do next Tri∣nity Term appear to this Declaration, and make him or themselves Defendants there∣unto, and by Rule of Court confess the Lease,

Entry and Ejectment, and insist only upon the Title at the Trial, the Defendant in this Declaration will confess Judgment, and Possession will be delivered accordingly to the Plaintiff, and you turned out of Posses∣sion.

Your Friend J. D.

To A. B. Tenant in Possession of the Premisses within mentioned.

To this the Tenant may appear by his Attorney, and consent to a Rule with the Plaintiff's Attorney, to make himself De∣fendant in the room of the casual Ejector, and to confess Lease, Entry and Ouster, and at the Trial to stand upon the Title only; or in default thereof Judgment will be en∣tred against the casual Ejector.

If the Tenant in Possession do not appear in due time, and enter into a Rule, as is aforesaid, then upon Affidavit made of the Service thereof, and notice given him to ap∣pear, the Court upon Motion will order Judgment to be entred against the casual Ejector; for if the Defendant plead nothing to this Action,* 3.1 but let it pass by Nihil dicit, the Judgment cannot be had upon a com∣mon Rule, as in Actions of Debt, and such like, but by Motion of the Court, because it is to alter Possession.

After the Declaration delivered,* 3.2 the Per∣son whose Interest is concerned, ought to retain an Attorney, who is to give his

Client's Name to the Plaintiff's Attorney, that so he may be made Defendant instead of the casual Ejector; and then a Rule is to be entred by Consent, as follows:

Robinson. Pas. 15 Car. 2. Regis.

D. versus M. in Ejectione Firme de terris & tenementis in H. in Com' M. ex dimissio∣ne E. P.

ORdinat est p Curiam ex assensu I. H. Attornat quer̄ & I. R. Attornat {pro} T. W. de W. in Com E. p̄dict Yeom quod idem T. admittatur defendens qui indilate comparebit p Attorn suum p̄∣dict & recipiet narrationem & plitabit ad∣inde generalem exitum hoc Termino & ad Triac̄onem superinde habend idem T. comparebit in {pro}pria persona sua aut p ejus Concilium vel Attornat Et cogno∣scet dimissionem intrationem & actualem expulsionem vel quod in defectu inde in∣tretur judicium versus Def. G. M. ca∣sualem Ejectorem sed parcatur ulterior prosecutio versus cum quous{que} p̄dict T. in aliquo p̄missorum defalt fccerit Et ex consimili assensu ulterius ordinat est per Cur quod p̄dict T. nullum capiet ad∣vantagium versus querent {pro} ejus non {pro}secutione super Triatione occasionat p hujusmodi defaltam sed quod p̄dict T. solvet querenti custagia Prothonotar̄ {pro} inde taxand Et ulterius ordinat est quod dimissor querentis sit onerabilis cum so∣lutione

custagiorum defendent per Cur aliquo modo taxand vel adjudicand.

The like in B. R.

Die Lune prox' post Crast' Ascensionis Domini, 23 Car. 2. Regis.

ORdinatum est ex assensu ambarum partium & eorum Attornat qd W. H. qui clamat titulum Messuagio in questione fiat Def. & compebit inldiate ad Sect quer̄ & impon commune Bal∣lium & recipiet narrationem in plito Transgressionis & Ejectionis Firme & plitabit adinde non culp▪ & super triati∣one exitus cogn dimission intration & actualem Ejectionem & stabit super titu∣lum tantum alit judicium intretur per defalt̄ versus modo querent Et si pdict W. H. super triatione exitus illius non cognose dimission intrac̄on & actual eject' p qd quer {pro}sequi ulterius non potest quod tunc nu•• mis̄ sive custaḡ super tali non pros̄ adjudicentur Et ulterius ordinat est qd si veredict redditum fuerit p̄dict W. H. vel predict quet non pros̄ foret {pro}pter aliquam aliam causam {pro} qm non cognost dimission intrac̄on & actualem e∣jectionem p̄dicy quod tunc le Aessor quet solveret talia custaḡ W. H. Def. qualia p Cut adjudicata fuerint p Cur̄'.

An Affidavit in Ejectment to move for Judg∣ment against the casual Ejector.

Inter A. S. Quer' & B. C. Def. 'de Terris & Tenementis in R. in Com' H. ex di∣missione J. H.

T. S. maketh Oath, That he this De∣ponent on Thursday the—day of —last past did deliver unto J. D. Te∣nant in Possession of the Premisses in que∣stion, a true Copy of the annexed Declara∣tion, with an Indorsement or Superscription thereupon, to this effect, viz. J. D. You may perceive by this Declaration, that I am sued as Casual Ejector for the Land, and Tene∣ments within specified, in your Possession (where∣unto I claim no Title) I do therefore hereby give you timely Notice, that unless you appear and defend your Title this next—Term, I shall suffer Judgment to pass against me by Default, whereby you will be turned out of Possession. Your Loving Friend, C. R. Dec. 12. 1679. Which said Indorsement or Superscri∣ption this Deponent did then read to the said T. D. and acquainted him with the Con∣tents thereof.

Note,. It is good Service to deliver the Copy to the Wife, or to the menial Servant of the Tenant in Possession. If to the Wife, thus (viz.) I did deliver to Ann the Wife; or, if to the Servant, to R. W. the hired Servant of J. D. and desired her to acquaint

her Husband therewith; or him his Master there∣with.

If there be two Tenants, then say, I did deliver one Copy of the annexed Declaration to A. R. Tenant in Possession of Parcel of the Premisses in question; and another Copy there∣of to C. D. Tenant in Possession of the Re∣sidue of the Premisses in question; upon which said several Copies was subscribed or indorsed to this effect, &c. Which said several In∣dorsements he the said Deponent did read to the said several Tenants, &c.

Notes

• * 1.1

  A new Decla∣ration deliver∣ed on the Es∣soyn-say.
• * 1.2

  The Declara∣tion is deliver∣ed after the Essoyn-day, and the Conse∣quence.
• * 1.3

  What day the Bill was filed, is examinable, whether after the day of the Lease, tho' it's the same Term.
• * 1.4

  If the Owner prays to be made Defen∣dant, the De∣claration to be entred as of the same Term, but no new Impar∣lance.
• * 1.5

  Where Copies of the Declara∣tion need not be paid for.
• * 1.6

  Lease not war∣ranted by the Declaration.
• * 1.7

  Declaration.
• * 1.8

  Argument.
• * 1.9

  Argued at the King's Bench before Lord C. J. Holt, &c.
• * 1.10

  Pulestone and Goodluck.
• * 1.11

  Mich last.
• * 1.12

  15 Car. 1. Haslefoot and Cade, after Ver∣dict the day in Record is al∣tered after Verdict.
• * 1.13

  14 Car. 2.
• * 1.14

  Declaration a∣mended after Plea, without paying Costs.
• * 1.15

  After Verdict and Judgment no Amendment of a Declara∣tion.
• * 1.16

  Aliter in Judg∣ment and Acts of the Court.
• * 1.17

  (Tenements) include a Re∣ctory.
• * 1.18

  Declaration of an House lying in two Parishes, and the House lies in one, it's good.
• * 1.19

  It must be al∣ledged in what Vill the Tene∣ments are.
• * 1.20

  Where the Per∣nomen is not good.
• * 1.21

  Forma praedict' how construed.
• * 1.22

  Declaration need not be of more Acres than he was ejected.
• * 1.23

  One fictitious Lease to A. and another to B. the same term, the last is not good.
• * 1.24

  Declaration a∣gainst two, ex∣pulit.
• * 1.25

  The Omission of vi & armis in the Decla∣ration.
• * 1.26

  The Omission of Extratenet in the Decla∣ration.
• * 1.27

  Demand of a part without shewing into how many parts divided.
• * 1.28

  Declaration in Ejectment with Quod cum, is good, not so in Trespass.
• * 1.29

  De Herbagio.
• * 1.30

  Herbage does not include all the Profits of thd Soil.
• * 1.31

  Wart ss.
• * 1.32

  Derb ss.
• * 3.1

  No Judgment against the ca∣sual Ejector but by motion of the Court.
• * 3.2

  What is to be done after the Declaration delivered.