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.

Writ of Inquiry.

It was assigned for Error, That a Writ of Enquiry of Damages was awarded, and no day given to any of the Parties to be there at the time of the Retorn; for the Entry ought to be, Ideo dies datus partibus praedictis, or at least to the Plaintiff, that so he might then pray his Judgment, sed non allocat', for the Defendant is not to have day, and the Plaintiff is to attend at his Peril; and so is the Course of the Common Pleas, aliter in the King's Bench, Cro. El. p. 144. Mathew and Hassel.

E. in Ejectione Firme had Judgment by Default against the Defendant; whereupon a Writ of Enquiry issues out to enquire of the Damages, and before the Retorn thereof the Defendant brought a Writ of Error, the Question was, Whether the Writ of Er∣ror were well brought, in regard the Course of the Common Pleas is not to make up the Judgment, until the Writ of Enquiry be re∣torned. Rolls said, A Writ of Error may be

brought before the Writ of Enquiry be re∣torned in Ejectione Firme, for in that Action the Judgment is compleat at the Common Law before it be retorned; for the Judg∣ment is but to gain Possession, and so it is in a Writ of Dower. But in an Action of Trespass where Damages are only to be re∣covered, there the Judgment is not perfect, till the Writ of Enquiry be retorned, nor can be made up, as in this Case it may. But in regard that here is no compleat Judg∣ment, for there is no Capias, which ought to be in all Actions Quare vi & armis, that the King may have his Fine, which else he cannot have, if the Party do not proceed in his Writ of Enquiry, the Writ of Error is brought too soon, and you may proceed to Execution in the Common Pleas, for the com∣pleat Record is not here. Afterwards in another Case Rolls was of Opinion, That it was a perfect Judgment; and it is in your Power (said he to the Defendant's Council) whether you will have a Writ of Enquiry or not; and if the Judgment be affirmed here upon the Writ of Error brought, you may have a Writ of Enquiry in B. R. the Coun∣cil therefore moved for a Certiorari. Rolls, take it, but it will do you no good, for the Judgment is well, Stiles Rep. Glide and Dude∣nu's Case. p. 122. Crook and Sanny. Stiles 127.

This Point is setled now in both Courts. In Ejectione Firme if the Plaintiff recover by Nihil dicit, in which Judgment is given, that the Plaintiff shall recover his Term, and a Writ is awarded to enquire of Damages, a

Writ of Error lies upon this Judgment before the Retorn of the Writ of Enquiry of Da∣mages, and Judgment upon it, for the Judg∣ment is perfect as to the Recovery of the Term before by the first Judgment, and the Plaintiff may presently have Execution for the Possession; and peradventure he never will have Judgment for the Damages, and so the Defendant shall be ousted of his Pos∣session sans Remedy. So it is if a Man re∣cover in Ejectione Firme by Confession, or non sum informatus, or Demurrer, a Writ of Error lies before the Damages taxed by Writ of Enquiry, 1 Rolls p. 750, 751. New∣ton and Terry, Taverner and Fawcet, Booth and Errington. 5 Rep. Wymarth, and House and Layton. Latch. p. 212.

Council prayed Abatement of a Writ of Enquiry on 16 and 17 Car. 2. c. 8. by Affi∣davit of Cesty que vie's Death after the Judg∣ment two days; and by the Act from the Judgment affirmed in Error, which was a Term after, which the Court granted. But it were better the mean Profits were reco∣verable in Ejectment by the same Verdict. Wild held this should be given in Evidence on the Writ of Enquiry, but being no Bar but in mitigation, that is not sufficient; and it was staid, Warren and Orpwood. M. 25 Car. 2. B. R. 3 Keb. p. 218.

Notes

• The Entry.
• The Writ of Error lies upon the Judgment before the Re∣torn of the Writ of Enqui∣ry, and why.
• Abatement by Death after Judgment or pendant Error, but not after Affirmance.