If the Defendant refuſe to confeſs Leaſe, Entry, and Ouſter, the Rules are thus:

Where the Defendant was by Rule of Court at the Tryal (which was to be at the Bar) to appear and confeſs Leaſe,Of the Defendant's Refuſal to confeſs Leaſe, Entry and Ouſter. Entry and Ouſter, and to ſtand upon the Title only, yet at the Tryal he would not appear; upon which the Plaintiff was Non-ſuit, and yet Judgment was for the Plaintiff upon the Rule, and he was ordered to pay the Jury. And in Davies's Caſe, 13 Car. 2. B. R. H. deſired to be made Defendant, confeſſing Leaſe, Entry and Ouſter, and at the Tryal reſolved ſo to do; but the Court denied that he ſhould pay Coſts, becauſe thereby the Plaintiff hath recovered, and ſo hath the Fruit of his Suit.To pay no Coſts. But in Williams and Hall's Caſe, on Tryal at Bar the Defendants refuſed to confeſs Leaſe, Entry and Ouſter, per quod the Plaintiff was Non-ſuited; and it was moved, that in regard the Default was the Defendant's, that the Plaintiff might have Attachment againſt the Defendant, according to the Courſe of the Common Bench, which the Court granted. So upon a Judgment aagainſt his own Ejector in default of confeſſing Leaſe, Entry and Ouſter, without a ſpecial Rule, no Coſts ſhall be paid by H. the Tenant in Poſſeſſion that made this Default, becauſe the Plaintiff hath Benefit of his Suit (viz.) Judgment againſt the Ejector, whereby he may recover Poſſeſſion. Stiles p. 425. 13 Car. 2 B. R. 15 Car. 2. B. R. 1 Keb. 242.

The Form of the Rule of Confeſſing Leaſe, Entry and Ouſter in B. sR. & B. C. Vide infra.

Of the Effect of an Entry according to the Rule, and where it will ſupply an actual Ouſter, and where not.

Ejectment was brought by Deviſee of a Rent,Where confeſſing Leaſe, Entry and Ouſter, will ſupply an actual Ouſter, or not. on Condition, That if a Legacy be not paid yearly, &c. that it ſhall be lawful for the Deviſee to enter; and after the Demand made of the Rent, this Action was brought, and the Leaſe, Entry and Ouſter was confeſs'd. Per Windham, this is only of an Entry ſufficient to make the Leaſe that entitles to the Action, not of an Entry that gives Title to the Land; and for Non-proving of an actual Entry, the Plaintiff was non-ſuited: But otherwiſe in caſe of a Leaſe rendring Rent, to be void by Re-entry by Non-payment. In the Ejectment there was a Rule for confeſſing Leaſe, Entry and Ouſter, and the Queſtion was, Whether this be ſufficient without Proof of actual Entry? Per Hales C. J. the Confeſſion is ſufficient, elſe in every Caſe of Diſſeiſin, &c. the Entry muſt be proved; but in Aſſignment of Aſſignee of Leſſee, ſuch Confeſſion doth not avoid the Aſſignment, but that muſt be proved; and this is as actual Leaſe on the Land, wich cannot be without Entry. And ſo is 1 Ventr. 248. Anonym. The Leſſor of the Plaintiff had a Title to enter for a Condition broken for Non-payment of Rent; Leaſe, Entry and Ouſter was confeſſed, and the Court was moved, that in regard that the Leſſor having ſuch a ſpecial Title, and no Eſtate till Entry, whether ſuch an Entry ſhall be ſupplied by the general Confeſſion, or that there ſhould be an actual Entry; and it was held, it ſhould be ſupplied by the general Confeſſion: But by Hales, If A. lets to B. and B. to C. to try the Title, the confeſſing of Leaſe, Entry and Ouſter extends only to the Leaſe made to C. and not to that made to B. P. 26 Car. 2. B. R. Abbot and Sorrel's Caſe. M. 25 Car. 2. B. R. Wither and Gibſon. 1 Ventr. 248. Anonym.

In Okely and Norton's Caſe, M. 22 Car. 2. B. R. Judgment was prayed for not confeſſing Leaſe, Entry and actual Ouſter by one Coparcener againſt another; Per Cur' on the former Rule to confeſs Leaſe, Entry and Ouſter generally, actual Ouſter need not be confeſſed, and Judgment was againſt the caſual Ejector.The Rule to confeſs Leaſe-entry and Ouſter, does not extend to confeſs actual Entry upon a Leaſe which is the Title. The Rule to confeſs Leaſe, Entry and Ouſter, does not extend to confeſs actual Entry upon a Leaſe, which is the Title; but the Court ſaid, An Entry ſhall be intended, until the contrary be proved of the other ſide. The Caſe was upon Evidence to a Jury at the Bar. The Plaintiff's Title was a Leaſe for Five thouſand Years, which Leaſe was ſealed and delivered at London; and the Council for the Defendant would put the Plaintiff to prove an actual Entry by force of this Leaſe; for it was agreed, That the Rule to confeſs Leaſe Entry and Ouſter, doth not extend to it; but per Cur' it ſhall be intended that he entred, until the contrary be proved on the other ſide, M. 22 Car. 2. Okely and Norton. Sid. p. 223. Langhorn and Merry.

Upon a Tryal in Ejectment the Title of the Plaintiff's Leſſor appeared to be by a Remainder limited to him for life upon divers other Eſtates, and that there was a Fine and Proclamation; but he within the Five years after his Title accrewed, ſent two Perſons to deliver Declarations upon the Land, as the uſual Courſe was upon Ejectments brought; Per Cur' this is no Entry or Claim to avoid the Fine, he having given no expreſs Authority to that purpoſe, and the Confeſſion of Leaſe, Entry and Ouſter ſhall not prejudice him in this reſpect, M. 25 Car. B. R. Clark and Phillips.

As for ones being made Defendant, the Rules are thus.

He that deſireth to be made Defendant in Ejectment for as much as is in his Poſſeſſion,The Defendant to give a Note of what is in his Poſſeſſion. or of his Under-Tenant, muſt give a Note to the Attorney of the Plaintiff in Writing of what the Particulars are, of which he is in Poſſeſſion, or his Under-Tenant, to prevent Delay at the Aſſizes, T. 15 Car. 2. ſo ordered.

By Pinſent. in B. C. If one move that the Title of the Land do belong to him, and that the Plaintiff hath made an Ejector of his own, and therefore prays, that giving Security to the Ejector to ſave him harmleſs,Difference between the Courſe in the King's Bench and Common Pleas. he may defend the Title, the Court will grant it, but will not compell the Plaintiff to confeſs Leaſe, Entry and Ouſter, except he will be Ejector himſelf. But it is not ſo in the Court of King's Bench, for there in both Caſes, they will compel him him to confeſs Leaſe, Entry and Guſter, Stiles Rep. 368.

The Courſe of the Court is,He that is made Defendant in Ejectment, not to be charged with Actions by the by. That one that cometh in to be made Defendant in Ejectment, upon his Prayer confeſſing Leaſe, Entry and Ouſter, ſhall not be charged with any Actions by the by; becauſe he comes in without Proceſs or Arreſt, only to defend the Title.

In Ejectment after Declaration and before Plea,Motions to t • r the Plaintiff, and why. he which had the Title, moved the Court for to alter the Plaintiff, becauſe he was to give evidence; and the Court agreed to it, that he ſhould alter the Plaintiff paying Coſts, and giving Security for new Coſts; and they may alter the Plaintiff in this Action upon the ſame Reaſon that they may alter the Defendant, which is uſually done, 1 Siderf. p. 24.

Note, After Default in Ejectment the Defendant may confeſs Leaſe, Entry and Ouſter. After Default (in Ejectment) the Defendant may confeſs Leaſe, Entry and Ouſter, and may give evidence, and have all Advantages (except Challenges) and if the Plaintiff becomes Non-ſuit, any one for the Defendant may pray it to be recorded, Tryals per pays, 195.

The Defendant was by Rule of Court at the Tryal which was to be at the Bar to appear and confeſs Leaſe, Entry and Ouſter, and to ſtand upon the Title only, yet at the Tryal he would not appear; upon which the Plaintiff was Non-ſuit, and yet the Judgment was for the Plaintiff upon the Rule, and he was adviſed to pay the Jury. Stiles Rep. 425. Harvey and Mountney.

Of the Ejectment-Leaſe.

You may obſerve what before is ſaid, That it's a feigned Leaſe, and by the new Rule is to be confeſſed; and it's laid ſometimes for three years, or five, or ſeven years: And it is good to lay it for longer than three or five years; for I have known by Injunctions and other Dilatories it hath worn five years out, and then the Plaintiff cannot have Judgment without beginning de novo. Enlargement of the Leaſe for a longer Term by the Court. And therefore Pemble and Sterno's Caſe being adjourned into the Exchequer-Chamber, the Court ordered an Enlargement of the Leaſe or Term from ſeven to twelve years, which they may do by Law, no Leaſe ever being actually ſealed, but declared on, and conſented to, Tr. 21 Car. 2. Pemble and Sterne's Caſe.

The Leaſe was 24. Sept. Habend. from Michaelmas next, virtute cujus the Plaintiff entred, Virtute cujus he entred. and ſaid not when; Per Cur' it ſhall be intended on the day after Michaelmas; but if it had been virtute cujus he entred eod' 24 day of Septemb. it had been ill. P. 26 Car. 2 Hallam and Scot.

Leaſe of all Warrants Ejectment of Part.

Ejectment by Leſſee of Leſſee of the whole by the Daughters and Heirs of Sir Peter Vanlore, How the Leaſe to be made where there are ſeveral parts uncertain claimed. which was made by reaſon of the uncertainty of the Part claimed by the Plaintiff, 2 Keb. 700.

Leaſe made to try a Title in Ejectment,Leaſe to try Title, no Matenance. is not within the Statute of Buying of Titles, if it be not made to great Men, but to a Servant of him that hath the Inheritance, 2 Brownl. 133.

Note, Ejectment may be brought upon a Leaſe made in the ſame Term, 1 Ventris.

Upon a Leaſe made by Husbands and their Wives for the Tryal of a Title, and the ſame executed by Letter of Attorney; the Leaſe and Letter of Attorney were only ſealed by the Husbands, and ſo not good; Per Cur' the Wives ought to have ſealed alſo, and the Entry of the Attorney ought to have been in all their Names. This by the old Courſe, 2 Roll. 2. 13. 〈1 page duplicate〉 〈1 page duplicate〉

Of what things an Ejectione Firme may be brought, and what not.

Ejectment lies not de una demo, becauſe it may be a Dowe-houſe or Dwelling-houſe;De Do ••• but Cro. Jac. 654. in Royſton's Caſe contra, that it lies de domo, as well as waſte de domibus, but it lies de domo vocat' Holts, 2 Roll. Rep. 487, 482. Warren's Caſe. Cr. Jac. vid. in Paſch. 1650. Fry and Pooly. Hard. 76.

Ejectment lies not de uno tenemento. De Tenemento. Ejectment was brought of an Houſe and the Moiety of a Tenement; it lies not for the Moiety of a Tenement; Verdict was (in this Caſe) given for the Plaintiff and intire Damages.Where the Plaintiff may aid himſelf by releaſe of part. The Plaintiff my well releaſe his Damages, as to the Tenement, and take his Judgment for the Houſe, and then it ſhall not be Error, 2 Bulſt. 28. Rothowick and Chappell.

Ejectment lies de uno Burgo,De Burgo. Hardr. 123. Danver's Caſe.

Ejectment de uno cubiculo, De Cubicule. is good; as it was laid, it was unius Cubiculi, per nomen unius Cubiculi being in ſuch an Houſe in the middle Story of the ſaid Houſe. The word Cubiculum is a more apt word than Camera. Ejectment de una Rooma, it was ſaid had been adjudged good in B. R. So a Praecipe lies of an Upper-Chamber, 3 Leon. p. 210. 2 Rolls Rep. 48.

Ejectment de uno repoſitorio, De Repoſitorio. Judgment was reverſed, becauſe it was uncertain, it not being expounded in Engliſh, it was intended a Ware-houſe, W. Jones 454. Sprig's Caſe. Cro. Car. 551. meſme Caſe.

It is not formal to bring Ejectment de unâ Capellâ, De Capella. but it ought to be by the Name of a Meſſuage or Houſe, 11 Rep. 25. b.

Ejectment de ſeptem Meſſuagiis ſive Tenementis;De ſeptem Meſſuagiis ſive Tenementis. it's ill after a Verdict for the uncertainty, Cro. El. 146.

Ejectment de uno Meſſuagio ſive tenemento vocat'De uno Meſſuagio ſive Tenemento vocat'. the Black Swan, is good per Twiſden; for the laſt words aſcertain it. Had the Verdict been general for the Plaintiff for the Meſſuages, and Non Culp' for the Tenements, it had been good: And in this caſe the Plaintiff cannot aid himſelf by releaſing of part, as it might be, had there been Lands in the Declaration. De Meſſuagio ſive Tenemento is ill after a Verdict, but if the Judge will allow the Jury to find for the Plaintiff for the Meſſuage and for the reſidue for the Defendant, it had been good; but the Plaintiff may not aid himſelf by Releaſe, Siderf. 295. Burbury and Yeoman.

Ejectione Firme lies not de Coquina, De Coquina. but it lies by Bill in B. R. tho' Coke ſaid it lies by Writ too, and the Law is all one, 1 Roll. Rep. 55.

It was adjudged in Stiles Rep. 215. That Ejectment doth lie of a Cottage, De Cotagio. becauſe the Deſcription of a thing by that Name is ſufficient and certain enough to ſhew the Sheriff of what to deliver the Poſſeſſion; but a Recovery lies not of a Cottage, Stiles p. 258. Hammond and Ireland. Cro. El. 818. Hill and Gibs.

Ejectione Firme lies de Pomario, De Pomario▪ and de Domo, for they are certain enough to give Poſſeſſion, tho' a Precipe lies not of it; and many things are recovered in Ejectment, which are not named in the Regiſter, as Hopyard, &c. Cro. Jac. 654. Royſton and Eccleston. Palmer, 337. meſme Caſe. Cro. El. p. 854. Wright and Wheatly.

Ejectione Firme de quatuor molendinis, De molendinis. without expreſſing whether they are Windmills or Water-mills, yet good, Mod. Rep. 9. Fitz Gerard's Caſe.

In Palmer and Humphrey's Caſe it was adjudged,De pcciaterrae. That Ejectment lies de pecia terrae; but it was after reverſed in the Exchequer-Chamber, Cro. El. 422. Palmer and Humphrys.

And a Declaration de una pecia terrae continen' ducentas & unam Acram ſive plus ſive minus jacent' inter terras, &c. this was adjudged ill after a Verdict, and Nil cap' per Billam entred. So continen' dimidiam acram terrae vocat'. It was ſaid in Hancock and Pryn's Caſe, Ejectment of a Cloſe of Land, or de pecia terrae containing ſo many Acres, had been good, W. Jones, p. 400. Savil 176. Hardr. 57.

Ejectione Firme cannot be of a Manor,De Manerio. for that there cannot be an Ejectment of the Services; but if they expreſs further a Quantity of Acres, it is ſufficient, and it lies of a Manor or the Moiety of a Manor, if the Attornment of Tenants can be proved; and there is none that brings Ejectment of a Manor, but they alſo add the Acres that contain it, to the end that if they prove it not a Manor, they may recover according to the Acres. Vide infra. Hetley 80. Norris and Iſham. And p. 146. Warden's Caſe.

It was doubted by Rolls and the Court,De Crofto. if an Ejectment lies de Crofto, therefore the Plaintiff moved for a ſpecial Judgment for the reſt of the Land contained in the Declaration, and releaſed the Damages as to the Croft, and had it; but afterwards in Meeres and French's Caſe it was agreed, That Ejectione Firme lies of a Croft, and Dower, and Aſſiſe will lie of a Croft, becauſe it is put in View of the Recognitors, tho' a Formedon nor Praecipe will lie of it, but 2 Car. p. Rot. 301. Holmes and Wingreve, de Crofto is ill in Ejectment, tho' good in Aſſiſe. Rolls Rep. p. 30.

Ejectment de uno Clauſo▪ De uno Clauſo. without ſaying how many Acres, is ill. A Man makes a Leaſe of a Garden containing Three Roods of Land, De tribus Roods of Land. Leſſee is ouſted and brings Ejectment; the Juſtices differed in Opinion, whether it were good or not; but all agreed the beſt order of Pleading to be, to declare, That he was ejected of a Garden containing Three Roods of Land, Godb. p. 6.

Parcella terrae does not comprehend a Garden in Ejectione Firme, Parcella tarrae. Moor 702. Palm. 45.

Ejectment de uno Clauſo continen' tres Acras per estimationem, ill; but Indictment quare vi & armis in Clauſum continen' tres Acras per Estimationem fregit, is good. Debt or Demiſe of Seven Acres per estimat', is ill, Dormer's Caſe. Brownl. p. 142.

Tho' in Co. 11 Rep. 55. Savill's Caſe, That an Ejectione Firme lies not of a Cloſe, yet the contrary had been ſince adjudged between Hykes and Sparrow, Tr. 15 Jac. Rot. 774. Cr. Car. 555. Siderf. 229.

Declarat' is Quod cum dimiſit to him unum Meſſuagium, unum Clauſum vocat' Dovecoat-Cloſe continen' tres Acras eidem m • ſſuagio ſpectan', per Cur' it does not lie of a Clo • e, tho' coupled with other Words, becauſe the Quality of the Soil is not alledged, as to ſay, Land, Meadow, Marſh, &c. And by Coke, if he had bound the Land without ſhewing the Quality, it had not been good; tho' it was objected, that by all the Words put together, here is ſufficient certainty to put the Party in Poſſeſſion; and yet ſome Reports are to the contrary. Ejectione Firme of a Cloſe called White-Cloſe, was ſaid to be held good in Ellis and Floyd's Caſe cited in Madonell's Caſe. But in Ireland Ejectment was of a Cloſe called the Upper Kibwell, and of another called the Lower Kibwell, containing Three Acres of Land, was held good.Regula. And it is a ſure Rule, That the certainty of the Land ought to be deſcribed, and the Quality, &c. And therefore the Caſe of Jones and Hoell ſeems not to be Law, which was Ejectione Firme of Seven Cloſes, one called Green Mead, and ſo gave to the others ſeveral Names, and the Verdict was for the Plaintiff, and by the Court there it's well enough; For, ſaid they, when a Name is given to every Cloſe, tho' the Contents of Acres are not mentioned, viz. ſo many of Land, ſo many of Paſture, i'ts ſufficient, and aided by the Statute of Jeofayls, 11 Rep. 55. Savill's Caſe. 1 Roll. Rep. 55. meſme Caſe. Cro. Jac. 435. Wilks and Sparrow. 2 Roll. Rep. 1. 608, 189. Macdonel's Caſe. Cro. El. 235. Jones and Hoell.

In Martin and Nichol's Caſe Error was aſſigned,It's not diſtinguiſhed how much of Paſture, and how much of Meadow, ergo ill. becauſe the Declaration was of a Meſſuage, and Forty Acres of Land Meadow and Paſture thereunto appertaining, and it was not diſtinguiſhed how much there was in Land, and how much in Paſture, and the Judgment was reverſed, Cro. Car. 573. Martin and Nichols.

Obſerve, Acres according to Statute-meaſure. In Ejectione Firme or a Praecipe of 100 Acres, this is according to Statute-meaſure; but if one bargain and ſell 100 Acres of Land to another, that ſhall not be according to the Statute-meaſure, but after the uſual Account in the Country; in Andrews Caſe cited in Ewer and Heydon's Caſe.

The Declaration was,De duabus acris fundi, Anglice, Hop-ground. That he was ejected è duabus Acris fundi, Anglicè, Hop-ground. Per Rolls, it is good in a Grant, but not in Declarations, and the Anglice here does not help it; for the Anglicè is not to interpret a Latin Name by which it is called, Stiles Rep. 202, 203. Meers and French.

Ejectment lies de decem Acris Piſarum; for in common Acceptance Ten Acres of Peaſe,De decem acris Piſarum. and Ten Acres of Land ſowed with Peaſe is all one, 1 Brownl. 150.

Ejectment of Three hundred Acres of Waſte, De 300 Acres of Waſte. inter alia, &c. per Cur' Waſte is uncertain, and may comprehend Land of any Quality, and the Sheriff will be at a Loſs what Land to deliver; and after the Plaintiff releaſed the Waſte and Damages, and took Judgment of the Reſidue, Hardr. 57. Hancock and Prynn.

Ejectment lies de prima Tonſura, of the firſt Crop,De prima Tenſura. Cro. Car. 362. Ward.

Ejectment lies of a Cole-mine, De Cole-mine. for it is a Profit well known. Ejectment of Land and a Colepit in the ſame Land, ruled to be good, becauſe it is in a perſonal Action, aliter in a Real Action, becauſe it is his petitum, 1 Rolls Rep. 55. Cro. Jac. 21. Harbotle and Placock.

It lies of a Boillary of Salt-water,De un. Boillary of Salt. Siderf. 161.

Ejectment lies not de rivulo ſeu aquae curſu, De R • vulo aquae curſu. therefore Godbolt, p. 157. n. 213. is not Law; nor a Precipe lies of it, and Livery and Seiſin cannot be made of it; for non moratur, non eſt firma, but is always fluctuant, and Execution by habere fac' poſſeſſionem cannot be made of it, but the Action ought to be of ſo many Acres of Land aqua coopert. but if the Land under the River or Place appertains not to the Plaintiff, but the River only, then upon Diſturbance his Remedy is only by Action on the caſe upon any Diverſion of it, and not aliter, Yelv. 143. Challoner and Thomas. M. 6 Jac. Challoner and Moor. Cro. Car. 492. Herbert and Llanghlyn's Caſe.

Ejectione firme lies not de Profit apprender, De Profit apprender. and ſo not of a Common or Rent, nor of a Piſchary, it muſt be terra aqua cooperta in ſuch a River, tho' the Court ſeemed doubtful of it in M • llineux's Caſe, which was Ejectment of an Houſe and Lands in T. nec non de Libera Piſcharia infra Rivulum de Trent in which Action Damages were entirely given;De Libera Piſcharia. but to avoid the Queſtion, the Plaintiff releaſed his Damages totally, and his Action quoad the Piſchary, and had Judgment for the Reſidue, Cro. Jac. 146. Molineux.

Ejectment was brought in Ireland of forty Meſſuages, De 100 Acres of Bogg. Five hundred Acres of Land, an Hundred Acres of Bogg in the Villages and Territories of D. S. and V. Bogg is an uſual Word, and well known there, and if it were not, the Plaintiff may releaſe his Demand as to that, and have Judgment for the Reſidue. Another Exception was, becauſe it was in Villis & Territoriis; In villis & territeriis. but per Cur' it's well enough, and of the ſame Senſe; and if not, it is but Surpluſage, as to the Territories, De 50 Acres of Mountain in Ireland. but Ejectment of 500 Acres of Mountain in Ireland, is ill, for it is not of one Nature, but ſeveral, as Turfs, Paſture; but a Precipe is good de Saliceto, de Stagno, de Dominio, by the general Notice the Country hath of them where the Lands lie, and of their Quality. On Ejectment in Ireland Error was brought in B. R. here, becauſe he brought Ejectment of 40 Acres of Wood,De 40 Acris boſci, & 40 Acris ſubboſci. and 20 Acres of Under-wood, and ſo one thing twice demanded, becauſe Underwood is a Species of Wood, ſed non allocatur, becauſe this does not appear to the Court, and this ſhall not be alledged for Error, but ought to be taken in Abatement of the Writ, Cro. Car. 512. Mulcarry and Eyres. 2 Roll. Rep. 166, 189. Macdonnel's Caſe. 2 Rolls Rep. 487, 482. Warren and Wakeley.

Ejectione Firme be omnibus Decimis is not good;De omnibus Decimis. De quadam portione D. 〈◊〉 . it lies not de quadam portione Decimarum generally, but de quadam portione granorum & foeni is good; the Nature ought to to be ſhewed, though not the Certainty; and the Ejectment was ſuppoſed in May, when there is not any Tythes, and ſo not good. It may be that all the Tything conſiſts in Modo decimandi for Payment of an yearly Sum in Satisfaction of Tythes, whereof no Ejectione Firme lies. It was a Queſtion in Preiſt and Wood's Caſe, Cr. Car. 301. Whether an Ejectione Firme lay of Tythes only? it may be of a Rectory, or ſuch a Chapel, and of the Tythes thereunto belonging, whereof an Habere fac' poſſeſſionem may be; but it was adjudged pro Querente. The Ejectment was ſuppoſed in taking ſo many Loads of Wheat and Barley, being ſevered from the Nine Parts, 1 Roll. Rep. 68. cited in Worral and Harper's Caſe. 11 Rep. 25. Harper's Caſe. Cro. Car. 301. Preiſt and Wood.

Ejectment of ſo many Acres Jampnorum & Bruerue, De 20 Acris Jampnorum & Bruere. and does not expreſs how many of each, yet good, Mod. Rep. 9. Fitzgerard's Caſe.

Ejectione Firme de una virgata terrae lies not,De una Virgata terrae. and ſo it was adjudged in the Exchequer-Chamber. Error was brought of a Judgment in C. B. in Ejectment de Virgata terre on general Verdict, which is ill, being uncertain in every County; but the Plaintiff below might have Releaſed Damages as to that, but now it is too late, Cro. Eliz. 339. Jordan's Caſe. 3 Keb. 450. Hall▪ and Johnſon.

Ejectione Firme lies not de Pannagio. De Pannagio. Q. de Parco, Sid. 417.

It lies de Herbagio,De Herbagio. 2 Rolls Rep. 481, 482.

Ejectione Firme was brought for Entry into a Meſſuage ſive Tenementum, and four Acres of Land to the ſame belonging, Per Cur' the Declaration is uncertain; but it was ſaid, as to the four Acres, it was certain enough, and the Words to the ſame belonging, are meerly void, and the Plaintiff releaſed Damages, and had Judgment, 3 Cro. 228. Wood and Pain. Cr. El. 186. meſme Caſe.

Ejectment lies not of a Free Warren, De libera Warrenna. 1 Keb. 500.

Count of the Moiety of two Acres of Land, De Moiety of 20 Acres of Land. is well enough, and Treſpaſs lies againſt the Sheriff, if he does not execute on the right places, 1 Keb. 278. Lufton's Caſe.

Per Cur' Ejectment lies de uno Stabulo, De uno ſtabulo or where-ever the thing is ſo certain that the Sheriff may do Execution, 1 Keb. 236. Whitacre's Caſe.

Separalis Piſcharia uſque ad filum aquae cannot be counted upon,Separalis Piſcharia uſque ad C. but per Windham ſuch Evidence might be given of ſuch Piſchary by Metes and Bounds, 1 Keb. 290. Sir Chr. Grieſe and Adams.

Ejectment lies de Capella,De Capella. per Windham, 1 Keb. 438.

Ejectment was laid on Demiſe at T. Of an Houſe and Land in quodam campo juxta le Caſtlehill. of an Houſe and Land in quodam campo juxta le Caſtle-hill, which per Cur' is ill (on motion in Arreſt of Judgment;) for no Execution can ever be directed to any Sheriff; and it muſt appear where the Land demiſed lieth, 1 Keb. 777. Took and Atho.

Ejectment of Ten Hides of Land is good; a Hide of Land is the ſame as Carucat', De 10 Hides of Land. Carucat. terrae what. which is as much as a Plow which is uſually intended to have ſix Horſes may manure in a year, and being 100 or 120 Acres in Northampton-ſhire, 1 Keb. 877. Wright and Sherrard.

Ejectment de 7 Meſſuagiis ſive Tenementis is ill after a general Verdict,De Meſſuag. & Tenement. and it's on Demurrer; this might have been helped by taking Verdict of either: So it is when the Ejectment is de Meſſuagio & Tenement', it's ill after General Verdict, 2 Keb. 80, 82. Burbury and Yeomans.

Ejectment does not lie of a Light houſe, Lighthouſe. but Action on the Caſe, 2 Keb. 114.

Ejectment of the Pannage of a Park, is ill, 2 Keb. 460.

Ejectment of a Cloſe of Meadow doubted in Steel and Stanly's Caſe. De Cloſe of Meadow. M. 22 Car. 2. B. C.

Ejectment of 600 Acres of Fen-Marſh, 600 Acres of Fen-Marſh, Meadow, arable L •• d. Meadow, arable Lands: Twiſden asked the Plaintiff whereof they would take their Verdict, if they would have it of Marſh; and as ſuch give Execution of the Fens in Queſtion, 2 Keb. 23. Downham and Walden.

Ejectment de 20 Villis & Terris in Ireland, De 20 villis & terris in Ireland. the Court conceived it wellenough on 1 Cro. 512. the Original Judgment being in C. B. and affirmed in B. R. there, 2 Keb. 745.

Ejectment of Two Mills, not ſaying what, good, 2 Keb. 875.

Ejectment of a Meſſuage includes a Garden, De meſſuagio includes a Garden. 3 Keb. 44.

Ejectment de virgat' terrae ill on General Verdict,De virgata terrae. being uncertain in every County; but the Plaintiff below might have Releaſed Damages, as to that; but now it is too late. This was in 〈◊〉 of a Judgment in B. R. 3 Keb. 450. Hall and Johnſon.

Ejectment of Moor or Meadow, Moor or Meadow. is ill, 3 Keb. 529.

Ejectment lies not of Common or Piſchary alone, De Common and Piſdhary. yet being after Verdict, it ſhould be intended appurtenant, and ſo well enough: This was in Ejectment of a Houſe and 40 Acres of Paſture, Keb. 738. Barton's Caſe.

Now as to Declarations in this Action, I ſhall lay down ſome General Rules.

1. The Plaintiff muſt declare on one Title only; and therefore in the Caſe of the Lord Chandois and Pitts, the Count was of three ſeveral Leaſes of the whole to the Defendant; the Council prayed that one B. may be made Defendant, and that the Plaintiff might elect to proceed on one only Title, which the Court granted, and ſaid, Altho' the Party may declare on ſeveral Leaſes, one at, and another from ſuch a Day, yet cannot declare on ſeveral Leſſors. And the Court ordered the Plaintiff to elect one Title only, Trin. 22 Car. 2. B. R.

2. In Ejectione Firme of a Cloſe, the Quantity of them and their Nature ought to be expreſſed (viz.) Land, Meadow or Paſture. Its a ſure Rule the Certainty of the Land ought to be deſcribed and the Quality, 11 Rep. 55. Savill's Caſe.

3. In Ejectione firme Surplſage in the Count, is not vitious, Dyer 304, 305.

4. If the Entry and Ejectment be ſuppoſed in the Declaration to be before the Commencement of the Leaſe, the Declaration is void. Vide Poſtea.

5. It muſt be alledged in what Vill the Tenements are. Vide infra.

6. The Plaintiff muſt make his Title truly. Vide infra p. 72. b.

The Entry to deliver Declarations in Ejectment, is not ſufficient to avoid a Fine, without expreſs Authority to enter to avoid the Fine; ſo was the Caſe reported, 2 Saunders 319. Tenant for Life levies a Fine ſur Coniſance de droit come ceo, with Proclamation, and he in Reverſion for Life within five Years after the Death of Tenant for Life, directs one to deliver a Declaration in Ejectment to the Tenant in Poſſeſſion; this ſhall not amount to an Entry to avoid the Fine, tho' this was the Declaration which contained the Leaſe upon which the Ejectment was brought, Keb. 555. Clerk and Pymell. M. 21 Car. 2. B. R.

DECLARATION.

In Ejectment in B. C. the Plaintiff there declares in the firſt Declaration,Variance between the Imparlance-Roll and Iſſue Roll, as to the Commencement of the Leaſe. which is called the Imparlance-Roll, of a Leaſe made the 20th of September for five years then next enſuing; and after Imparlance upon the Iſſue-Roll (for there the Plaintiff uſeth to declare again after Imparlance) the Plaintiff declares of a Leaſe made the 30th of January the ſame year Habend' for five years from the 20th of December before; and upon Iſſue found pro Quer' per Cur', it's erroneous; for he declared upon one Leaſe, and went to Iſſue upon another; for when a Leaſe is made the 30th of January Habend from the 20th of December before, this is but a Leaſe in Intereſt till the 30th of January, and not before, and only in Computation from the 20th of December, The Imparlance-Roll is the material Declaration. and by the Prothonotaries, the Imparlance-Roll is the material Declaration; and if Variance be from it in matter of Subſtance, this is not good nor amendable, tho' it was urged, That the laſt Declaration ſhall be taken as a new Declaration, without any Reference to the other, and then it ſhall be good, 1 Roll. Rep. 448. Millward and Watts. 3 Bulſtr. 229. Millward and Watts. Cr. Jac. 415. meſme Caſe.

But in Merril and Smith's Caſe, Cro. Jac. 311. the firſt Declaration was, That T. S. 25th of March 6. Jan. let to the Plaintiff the Land, &c. for ſeven years, by Vertue whereof the Plaintiff entred and was poſſeſſed until the Defendeant postea ſcil. Anno ſexto ſupradict' entred and ejected him, ſo there is not any day mentioned. After Imparlance (as the Courſe in the Common Bench is) the Plaintiff made a ſecond Declaration, and there (without any ſpace made) the Ejectment is ſuppoſed to be the 26th of May Anno ſupradict', and the Writ was brought of this Ejectment 7 Jac. The Defendant pleads Non Culp', and found againſt him, and Judgment; and this was aſſigned for Error;The firſt Declaration is moſt material. per Cur' the firſt Declaration is the principal and material Declaration, and the ſecond is but a Recital of the firſt. And if any matter of Subſtance be omitted in the firſt, it cannot be aided and amended by the ſecond, for that begins with an Alias prout patet, ſo it is but a meer Recital; and therefore if the firſt be not good, tho' the ſecond be good, and he plead thereto, and the Trial is thereupon; yet the Judgment is erroneous: But as this Caſe is, the firſt Declaration is well enough; for he declares of a Leaſe the 25th of March 6 Jac. which is the firſt day of that year, and the Declaration quod p • ſtea ſcil' 6 Jac. The Defendant ejected him, is certain enough for the year wherein he made the Ejectment; ſo it appears to be after the Leaſe made and in the ſame year 6 Jac. wherein the Ejectment was, and the Action is brought the. 7 Jac. and the Ejectment being made between the making of the Leaſe, and the Action brought, it's good enough, tho' there is not any certain day alledged, Cro. Jac. 311. Merril and Smith.

Original in Ejectment was brought againſt H. Simul cum. and three others, and the Plaintiff counts againſt three of the Defendants, and no Simul cum againſt the fourth, and Judgment was arreſted for this, 2 Brownl. 129.

It's a ſure Rule,Entry and Ejectment ſuppoſed before the Commencement of the Leaſe. if the Entry and Ejectment be ſuppoſed in the Declaration to be before the Commencement of the Leaſe, the Declaration is void, as in Powre and Hawkins's Caſe cited, Yelv. 182. in Davis's Caſe. The Plaintiff declares upon a Leaſe of E. 27 April. Anno ſexto, and lays the Ejectment to be the 26th of April Anno ſexto ſupradict', the Declaration was adjudged ill for this cauſe; but the Court will, and have help'd it by as favourable Conſtruction as may be, as in the principal Caſe in Yelv. The Plaintiff declares of a Leaſe made by C. 6 of May Anno ſeptim • , of a Meſſuage, &c. and that the Plaintiff entred and was poſſeſſed qu • uſque poſtea the Defendant 18 die ejuſdem menſis Maij Anno ſexto ſupradict' ejected him; it was moved in Arreſt of Judgment upon Verdict for the Defendant (to ſave Coſts) that the Declaration was inſufficient,This Action is grounded on two things (viz.) the Leaſe and the Ejectment. for that this Action was grounded on two things (viz.) upon the Leaſe and upon the Ejectment, and theſe two ought to be one after the other; and in this Caſe the Ejectment is ſuppoſed an Year before the Leaſe made; for the Leaſe is Anno ſeptimo, and the Ejectment ſuppoſed to be made Anno ſexto, yet the Declaration was adjudged good, and the word ſexto to be void: For the day of the Ejectment being the 18th day ejuſdem menſis, it ſhall be intended to be in the ſame year in which the Leaſe is ſuppoſed to be made, Brownl. p. 146. meſme Caſe. So in Adams and Gooſe's Caſe, Cro. Jac. 97. In Ejectment the Plaintiff declared of a Leaſe the 6th of Septemb. and that he was poſſeſſed, and that postea ſcil. the 4th of Septemb. the Defendant ejected him, and by three Juſtices the Declaration was held good, and the 4th of September is impoſſible and repugnant, and the poſtea ejecit is well enough. But in •• odgaine's Caſe, 1 Siderf. the Jury found that J. N. let to the Plaintiff for five years the 24th of June Anno 1650. by force whereof the Plaintiff enters the 24th of June 1650. (the Leaſe being to commence à die datus) and that poſtea ſcil. 24th of June 1650. the Defendant ejected him; ſo that the Entry and Ejectment was ſuppoſed before the Leaſe, and Judgment was againſt the Plaintiff for this Defect. The Council of the contrary ſide ſtood much upon the Caſe of Adams and Gooſe; but per Cur' that Caſe differs from this; for in Adams's Caſe it appeared to be, that he entred by ſorce of the Leaſe, and was poſſeſſed thereof till he was ejected; but in this Caſe he entred the 24th of June, which was before the Leaſe commenced; and Judgment was given, 1. Becauſe he ſaid, he entred the 24th of June, and ſo was a D • iſſeiſor. 2. Becauſe the Declaration is contrary in it ſelf. And Clifford's Caſe, Dyer 89. a. and Gr • en and Moody's Caſe were cired. Bridgman ſaid, He found no reaſon for Adams and Gooſe's Caſe, Yelv. 182. Davis and Pardy. Cro. Jac. 97. Adams and Gooſe Siderf. p. 8. Goodgaine and Wakefeild.

Ejectione Firme of a Leaſe of H. Virtute cujus & iiſdem die & anno he ejected him, how conſtrued. P. 22 of May 20 Jac. of, &c. Hab. à primo die Maij for three Years, virtute cujus the Leſſee entred and was poſſeſſed quouſque postea ſcil. eiſdem die & anno the Defendant ejected him. It was aſſigned for Error, that iiſdem die, &c. refers to the firſt day of May, which is ultimum antecedens, and then the Ejectment is alledged before the Leaſe made, ſo the Declaration not good; but per Cur' the Allegation of the firſt day of May is but for the beginning of the Term; and the Declaration being quod virtute dimiſſionis, he entred postea iiſdem die & Anno, &c. that refers to the day of the Leaſe made, otherwiſe he cannot be poſſeſſed virtute dimiſſionis, and Judgment was affirmed in the Exchequer Chamber, Cro. Jac. 662. Rutter and Mills.

The common Miſtake has been (as is obſervable in our Book-Caſes) in laying the Leaſe to be à die daius, and the Entry the ſame day, which is a Diſſeiſin not purged by the Commencement of the Leaſe; for where an Intereſt paſſeth [a] is excluſive, and ſo the Entry the ſame day was before the Leaſe was to commence, and is a Diſſeiſin; but where no Intereſt paſſes, as in Caſes of Obligations, Contra. In Douglas and Shank's Caſe. Cr. El. 766. the Plaintiff declares of a Leaſe for years Habend' à die datus, virtute cujus dimiſſionis he entred,Virtute cujus. and was poſſeſſ'd until he was ejected by the Defendant. Not guilty pleaded. The Declaration is ill, becauſe the time of the Entry is not alledged; for if he entred at the day of the Demiſe, he is a Diſſeiſor, and the Action not maintainable; Virtute cujus. how taken. the ſtrongeſt ſhall be taken againſt the Plaintiff (viz.) That he entred the day of the Leaſe made, and that is not ſupplied by the words virtute cujus; but no Judgment was given, becauſe two againſt two: yet in Dyer 89. in margine it's ſaid, becauſe he did not aver in facto, that he entred after the day of the date (for the Leaſe doth not commence till the next day) that Judgment was arreſted abſente Popham. And another caſe is there cited, M. 44. or 42. El. B. R. in Ejectione Firme upon a Leaſe made to commence at Michaelmas, and the Plaintiff declares, That he, virtute dimiſſionis, &c. And it was moved in Arreſt of Judgment, becauſe he ſaith not, he entred after Michaelmas. And Dyer 89. was cited, and Gaudy and Fenner held it ill; but per Popham it is aided by the Statute of Jeofayis, becauſe it is Form only, and the Demiſe is the Subſtance; and per Popham after Michaelmas he is Termor by the Continuance of the Poſſeſſion, quod Fenner and Gaudy negaverunt. But in Wakely and Warner's Caſe Ejectment was brough in Ireland, and Judgment pro Querente. Virtute cujus & praetextu cujus, he entred. It was aſſigned for Error that the Plaintiff ſhews a Leaſe made to him to commence at a day to come, virtute cujus he entred, and was poſſeſt until ejected by the Defendant, and ſhews not when he entred, either after or before the day at which the Leaſe commenced; ſed non allocatur, becauſe he ſaid virtute cujus, &c. But by Lea Chief Juſtice, if he had ſaid praetextu cujus, it had been otherwiſe, Moor 466.

Ejectment of a Leaſe made the 12 of Dec. Commencement. Habend' à primo die. On Not guilty, the Jury find a Leaſe made in haec verba, which was dated primo Decemb. Hab. from henceforth, but delivered the 12th of Decemb. and the Queſtion was. Whether this be according to the Declaration? It was objected, That from the day of the Date, and from henceforth are ſeveral Commencements, for the one begins the day it was ſealed, the other the day after, but per Cur' they are all one, being a Computation of time from the time paſt,Habend. à die datus expounded. and both ſhall be pleaded to begin from the day of the Date, when the Leaſe is afterward ſealed another day. But if he declares of a Leaſe the firſt of December, Hab' à die datus, the Ejectment cannot be alledged the ſame day; but if the Leaſe be made the firſt of Decemb. Hab. henceforth, the Ejectment may be alledged the ſame day. So was the Caſe of Oſborn and Ryder: Ejectment on a Leaſe made 1 Jan. 3 Jac. Hab. à die datus, and the Ejectment was the ſame day, and ruled to be good; tho' the Hab. is as much as to ſay, from the day of the Date; but per Cur' the Date is the time of the Delivery, and it differs from the day of the Date; wherefore the Ejectment alledged poſtea the ſame day is good enough, Cro. Jac. p. 258. Lluellyn and Williams. And p. 135. Oſborn and Ryder.

Ejectione Firme of a Leaſe dated the 6th of December 17 Jac. Hab. à die datus, upon Evidence the Leaſe was ſhewed, and was dated the 6th of Decemb. 19 Jac. Hab. à die confectionis, the Plaintiff was Nonſuited, Cr. Jac. Scavage's Caſe.

The Plaintiff declares upon a Leaſe made the 10th day of October Hab. from the 20th day of Novemb. for five years; the Queſtion was upon a ſpecial Verdict, Whether this was a good Leaſe or not. Judgment was arreſted. It ſhall not begin from the time of the Delivery;Uncertain Limitation of the Commencement of the Leaſe. but it's an uncertain Limitation, and cannot be known what November he meant, laſt paſt, or next enſuing. But the Law will reject an impoſſible Limitation, as from the 31ſt of Septemb. becauſe it cannot be any part of the Parties Agreement. The Declaration was, Quod cum J. H. by his Indenture bearing date the 20th of May, 32 Eliz. No day of the Delivery ſhewed. had let to him an Houſe, and ſhews not when the Leaſe was made; for he doth not ſhew any day of the Delivery, per Cur' it's good: For it ſhall be intended to be delivered at the day of the Date, Mod. Rep. p. 180. 3 Leon. p. 266. Kniver and Cope.

In Ejectment of the Manor of D. Variance. containing 250 Acres, be it more or leſs, with Letters of Attorney reciting, Whereas J. the Leſſor had made a Leaſe of a Manor containing 250 Acres, and Authority to make Livery according to the recited Leaſe, per Cur' the Variance is fatal, and the Plaintiff was nonſuited, 3 Keb. 691. Smith and Talbot, M. 18 Car. 2.

Plaintiff declares,In what Vill. That P. C. by Indenture apud S. let unto him an Houſe and 20 Acres of Land by the Name of all the Tenements in S. After Verdict Judgment was Arreſted, becauſe it was not alledged in what Vill the Tenements are,Per nomen. and the naming of the Vill in the Pernomen is not material, Cr. El. 822. Gray and Chapman.

50 Hobert 89. Rich and Shere. Declaration was, That at E. in Com' praedict' he did demiſe one Meſſuage, four Gardens, Two hundred Acres of Land, Eighty Acres of Paſture called Eaſt-Dizard in the ſaid County. On Not guilty the Plaintiff had Judgment; it was Error, becauſe the Plaintiff in his Declaration did not ſhew in what Town, Pariſh, Hamlet or Place the ſaid Tenement called Eaſt-Dizard lay; and Judgment was reverſed in the E • chequer-Chamber.

Declaration was of a Leaſe of Serjeant Hele, That he, the 16th of January, 44 El. by Indenture dated the 2d of January, demiſed, &c. it was moved, That the Declaration was not good, becauſe it is that he demiſed the 16th of Jan. by Indenture dated the 2d of Jan. When the Leaſe ſhall be intended to be delivered on the day of the Demiſe, and not of the Date. and he does not ſay primo delibat' the 16th of Jan. for otherwiſe it ſhall be intended to be delivered the day it bears date. But per Cur' it's good; for tho' a Deed ſhall be intended to be delivered the day it bears date, unleſs the contrary be ſhewed, yet when it's ſaid, he demiſed ſuch a day by Indenture dated ſuch a day before, it muſt be neceſſarily intended it was not delivered the ſame day it bears date, but upon the day of the Demiſe, as it is alledged, Cro. El. 890. Houſe and Laxton. Cro. El. p. 773. Hall and Denby.

And the Verdict often aids and intends, that it was delivered the ſame day it bears date, as in Heaton and Hurleſton's Caſe. The Declaration was, Whereas J. S. by▪ Indenture the 9th of June 19 Jac. dimiſiſſet, &c. Habend' terminum praedict' à die datus ſigillationis Indenturae praedictae for three years; virtute cujus the Plaintiff the 10th of June 19 Jac. entred, and was poſſeſſed until, &c. and Verdict pro Quer' on Not guilty, per Cur.' when the Verdict has found him guilty upon the Declaration, and the Ejectment is alledged according to the Declaration, it may well be intended, that the Indenture bore date, and was ſealed and delivered the ſame day mentioned in the Declaration of the Leaſe, tho' it was objected, That neither the day of the Date, nor of the Sealing and Delivery of the Indenture are mentioned, and ſo the Declaration uncertain; but Judgment pro Querente, Cro. Jac. 646. Heaton and Hurleſtone.

Now in Wakely and Warren's Caſe, Virtute cujus & praetextu cujus he entred; the difference between them. tho' the Plaintiff does not ſhew in his Declaration when he entred, either after or before the day on which the Leaſe commenced, yet it's good enough; becauſe he ſaith, the Leaſe to him made, was to commence at a day to come, virtute cujus he entred, and was poſſeſt until, &c. aliter had it been, if he had ſaid praetextu cujus, 2 Rolls Rep. 466. Wakely and Warren.

Now the Judges favour Declarations in Ejectment, as may be ſeen, 1 Ventr. 136. The Plaintiff declares in Ejectment, That J. S. demiſed to him per quoddam Scriptum Obligatorium, &c. Habend' à die datus Indenturae praedictae; per Cur' the Writing ſhall be intended an Indenture, tho' it be called Scriptum Obligatortum, and every Deed obligeth; but if it ſhall not be intended Indented, then the Leaſe ſhall begin preſently, as if it had been made from the 4th of September.

But a Declaration was of a Leaſe Hab. à die datus Indenturae praedictae, and does not ſpeak of any Indenture before, and the Declaration was adjudged naught. But Ejectione Firme of a Leaſe made the 20th of August Hab. from Michaelmas then laſt paſt ante datum hujus Indenturae, and neither ſhewed the Indenture nor the Date thereof, and per Cur' it's well enough. The Addition ante •• tum Indenturae ſhall be void, the other being good, Et poſtea how expounded. and the beginning of the Leaſe appearing certain enough, Hetley 63. Brady and Johnſon. Cro. El. 606. Darrel and Middleton.

Ejectione Firme of a Leaſe made the 21ſt. of Octob. 4 Jac. & quod postea ſcilicet eodem 21 die Octob. Anno tertio ſupradicto he ejected him: And the Addition of an Year, which was not mentioned before, and which is repugnant to that day which was mentioned, is idle, and ſhall be taken for null, & postea the ſame day ſhall be good enough, Cro. Jac. 154. Brigate and Short.

Error was aſſigned,Ejectment of the 4th part of an Houſe in 4 parts to be divided, and declares de tenementis praedictis. for that the Plaintiff did Count of the Leaſe of the fourth part of an Houſe in N. in four parts to be divided, by force of which he entred in tenementum praedictum, and was inde poſſeſſionat' till the Deſendant did eject him de tenementis praedictis, whereas he ought to ſuppoſe his Entry into the fourth part, and the Ejectment of the fourth part, ſed non alloc'; for the Entry and Ejectment ſuppoſed de tenementis praedictis ſhall not be intended of the intire Tenement, but of the fourth part of the Houſe, according to his Declaration, Cr. El. 286. Rawſon and Mainard.

Ejectment for Tythes, not ſaying by Deed, Judgment was reverſed, 2 Keb. 376. Angell and Rolf.

The Declaration was of ſeveral Meſſuages in the ſeveral Pariſhes of St. Michael, St James, St. Peter and St. Paul, and that part of the Premiſſes lay in the Pariſhes of St. Peter and St. Paul; but that there is no Pariſh called the Pariſh of St. Peter, nor none called the Pariſh of St. Paul; per Cur' the Copulation (Et) ſhall be referred to that which is real, and hath exiſtence, ut res magis valeat, to make them both one Pariſh; and the words, ſeveral Pariſhes, is ſupplied by the other Pariſhes aforenamed, Hardr. 336. Ingleton and Wakeman.

By Coheirs or Coparceners.

Declaration by Coparceners,Quod demiſerunt. Quod dimiſerunt is good; therefore Molliner and Robinſon's Caſe, Moor 682. where the Leaſe was made by two Coparceners, and it was declared, Quod dimiſerunt: To which it was excepted, that the Leaſe is the ſeveral Leaſe of each of them for his Moiety, which was there ruled a good Exception, is not Law, 2 Brownl. 207. Cro. El. 615. 2 Keb. 192. Moor 682.

And now Ejectments in ſuch Caſes are by the Leſſee of a Leſſee of the whole by many Coheirs,Coheirs declare by the Leſſee of a Leſſee, and why. which is by reaſon of the Uncertainty of the part claimed by the Leſſors; and per Cur' a Leaſe of all parts warrants the Leaſe of all, 2 Keb. 700.

By Tenants in Common.

If Two Tenants in Common joyn in a Leaſe for years to bring Ejectment, and Count quod dimiſiſſent, it's naught, for it is a ſeveral Leaſe of their Moieties, and they muſt declare, Quod cum one of them dimiſed the one Moiety, and the other the other Moiety, 1 Brownl. 13. Cr. Jac. 166. Mantley's Caſe.

If one Tenant in Common take the whole Profits, the other has no Remedy by Law againſt him; for the taking the whole Profits is no Ejectment, but if he drive away the Cattel of the other Tenant in Common off the Land, or not ſuffer him to enter and occupy the Land, this is an Expulſion, and he may have Ejectione Firme for the one Moiety, and recover Damages for the Entry, but not for the mean Profits, 1 Inſtit. p. 199. b.

By Baron and Feme.

The Plaintiff declares of a Leaſe made to him by Baron and Feme generally, and does not alledge it to be by Deed; it was a great Queſtion in our Books, whether this be good or not; but now it's ruled to be good by many Precedents, 2 Rep. 61. Wiſcot's Caſe.

By Joyntenants.

C. and R. and W. Daughter to R. are Joyntenants for years; W. lets her part to C. and C. and R. joyn in this Leaſe of the entire Land to the Plaintiff for three years. Popham and Fenner held, That this Leaſe well warrants the Declaration; for upon the matter they both let the entire, and upon this general Count it is good. Yelverton and Williams è contra, becauſe the Count ſuppoſeth they both let the entire as Joyntenants; for ſo it is intended by the general Count, which appears to be falſe, for they two let two Parts joyntly, and the one of them having a third Part, as Tenant in Common,Two as Joynt-tenants, and one as Tenant in Common, demiſe the Commons, in ſuch Caſes how to declare. lets that only, and ſo the Declation ought to have ſhewed the Truth and the Special Matter. And becauſe it is difficult, they uſe in ſuch Caſe to make a Leaſe, and the Leſſee to make a ſecond Leaſe, and the ſecond Leſſee to declare generally; and ſo all the matter ſhall come in Evidence. Fleming, before whom it was tryed by Niſi prius, over-ruled it, that this Declaration was well maintained by the Leaſe, and the Jury gave a Verdict according to his Opinion, Cro. Jac. p. 83. Jordan and Steere.

Upon a Leaſe by Tenant for life and him in Remainder.

A. Tenant for life, Remainder to B. in fee, they both by Indenture joyn in a Leaſe to the Plaintiff; Per Cur' this is the Leaſe of A. during his Life, the Confirmation of B. and after the Death of A. it is the Leaſe of B. and the Confirmation of A. And becauſe the Plaintiff in Ejectment had counted of a joynt-Leaſe by A. Verdict. and B. it was adjudged againſt him, 6 Rep. 15. Treport's Caſe.

So is the Caſe in Popham p. 57. upon a Demiſe by Dorothy Pool and Robert Smith, it was thus on a Special Verdict: Dorothy was Tenant for Life, Remainder to Smith in Fee, and they being ſo ſeiſed, made the Leaſe in the Declaration, Per Cur' the Leaſe found per the Verdict doth not warrant the Leaſe alledged in the Declaration; for during Dorothy's Life it's her demiſe, and not the demiſe of Smith, but as his Confirmation for that time; for he had nothing to do to meddle with the Land during the Life of Dorothy, and after her death it ſhall be ſaid to be the demiſe of Smith, and not before, Poph. 57. King and Berry.

By a Corporation.

The Plaintiff declares upon a Leaſe to him made by the Preſident, Fellows and Scholars of St. John's Colledge, Oxon. and in the Concluſion he doth not ſay, hic in Curia prolat', Per Williams it is not good. The Ejectment-Leaſe being made by a Corporation, they ſealed the Leaſe and delivered it by their Attorney, having a Letter of Attorney from them to deliver the ſame; they cannot do this in any other manner than by their Attorney, 1 Bulstr. 119. Lord Norris's Caſe.

Hill. 36 El. Carter and Cromwel, in Ejectione Firme, the Plaintiff counts per Leaſe made by the Warden of All-ſouls Colledge in Oxon. And Exception was taken, becauſe the name of Baptiſm of the Warden was omitted, but adjudged there need not; the difference is where a Corporation is ſole Perſon, as Biſhop there may be his Name, aliter aggregate. Dyer 86. Marg.

Ejectment was brought on a Demiſe of a Corporation, not ſaying by Deed, per Cur' Judgment ſhall not be arreſted for this on Judgment by cognovit Actionem at the Aſſiſes, but it ſhall be intended after this as well as after a Verdict.

Upon a Leaſe by Commiſſioners of Bankrupt.

Commiſſioners of Bankrupt had aſſigned the Land in Queſtion to the Leſſor of the Plaintiff, which Indenture was afterwards inrolled, but the Declaration was of a Demiſe made after the Indenture and before the Inrolment; and whether that Demiſe were ſufficient to intitle the Leſſor of the Plaintiff, was the Queſtion in Perry and Bowe's Caſe; Per Cur' it is not ſufficient. Vide le caſe, 2 Ventr. 360. Perry and Bower.

By Copyholder.

If a Leaſe be found made by a Guardian or Copyholder, ſuch a Leaſe will maintain the Declaration, tho' their Leaſes are void againſt the Lord and Infant, Hardr. 330. Wheeler's Caſe.

Vide ſupra Tit. Who ſhall have Ejectione Firme.

By Adminiſtrator.

He ought to ſhew how the Archbiſhop granted it, either as Ordinary, or by his Prerogative; and therefore Exception was taken to a Declaration in Ejectment, becauſe the Plaintiff conveyed his Intereſt by an Adminiſtrator of all the Goods of the Leſſee in Suſſex and Kent, but ſhews not how the Archbiſhop granted it, either as Ordinary, or by his Prerogative;Preſidents not to be changed. and this was held by the Court to be a material Exception. But becauſe all the Preſidents in B. R. and B. C. were ſo in general, without ſhewing how, and becauſe they would not change Preſidents, they diſallowed the Exception, Cro. El. p. 6. Dorrel and Collins.

In Gillam and Lovelace's Caſe, it was moved in Arreſt of Judgment, That the Declaration (brought by Adminiſtratrix) was not good; becauſe the granting forth Letters of Adminiſtration was in this manner (viz.) Adminiſtratio commiſſa fuit querenti per William Lewin vicarium generalem in ſpiritualibus Epiſc. Rot. without averring, that at the time of the granting Letters of Adminiſtration,Vicar-General. the Biſhop was in remotis agendis, for a Biſhop preſent in England, cannot have Vicarium; but per Cur' the Vicar-General in ſpiritualibus amounts to a Chancellor; for in the Truth, a Chancellor is Vicar-General to the Biſhop. 2. The Declaration is not Epiſcop. Roff. loci illius ordinarii, but per Cur. all the Preſidents are ſo, and in a Declaration ſuch Allegation needs not, but by way of Barr it is neceſſary. 3. The Plaintiff declares of Ejectment, and alſo quod bona & catalla ibid. invent. cepit; and in the Verdict the Damages for the Ejectment and Goods are entirely taxed Quaere de hoc. 1 Leon. p. 312. Gilham and Lovelace,

Ejectione Firme was brought of a Leaſe of Tythes, and ſhews not that it was by Deed, and ruled to be ill, becauſe Tythes cannot paſs without Deed, Cr. Jac. 613. Swadling and Peers.

Of the Delivery of Declarations, Filing and Entry.

The Court,A new Declaration delivered on the Eſſoyn-ſay. 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 delivered 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 delivered after the Eſſoyn-day,The Declaration is delivered after the Eſſoyn-day, and the Conſequence. 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 Judgment (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,What day the Bill was filed, is examinable, whether after the day of the Leaſe, tho' it's the ſame Term. which relates to the firſt day of the Term, yet it's a matter of Evidence, 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 theIf the Owner prays to be made Defendant, the Declaration to be entred as of the ſame Term, but no new Imparlance. 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,Where Copies of the Declaration need not be paid for. they need not pay for the Copies, and ſo a Trial at Bar ſhall not be hindred for want of payment of the Copies, 2 Keb. 805.

I find a Rule of Court to change the year, thus: ſſ. Mich. 13 Car. Ordinat eſt per Curiam nono die Octob qd quer' narrationem ſuam in intratione inter partes de Termino St. Trin ult intxat in Anno dimiſſionis emendavit Et ubi per miſpriſionem Clerici allegavit dimiſſionem fieri duodecimo die Aprilis Anno undecimo Caroli fieri debuit Anno duodeeimo & quer' ſolveret Def. miſs per Magiſtr • Gulſton taxand pro emendatione illa ex motione Magiſtri Boon.

Leſſee for three years makes a Leaſe for five years in Ejectment to try the Title,Leaſe not warranted by the Declaration. 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 Plaintiff can have no Judgment; Per Hale the Leaſe is good only for three years,Declaration. 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, Defendants.

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,Argument. and a Verdict for the Plaintiff; and the Defendants have moved in Arreſt of Judgment,Argued at the King's Bench before Lord C. J. Holt, &c. 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 apply my ſelf to the Statute of the 16 and 17 of King Charles the Second Cap. 8. which I humbly 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, Defects, 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 Lordſhip.

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 Declaration, for all the miſtake was only betwixt ſeptimo & ſexto; and there is an Imparlance entred on the Roll in Eaſter-Term laſt againſt 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 amendable 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,Puleſtone and Goodluck. is, That tho' Tenants in Poſſeſſion being not all duly ſerved in the Country, the Tenants agree to appear ſo as the Plaintiff would conſent to try it at the Bar, and that thereupon there was a new Declaration delivered, which had this Miſtake, and ſeems to inferr, that the former Declaration was waved, and this was altogether a new Proceeding, wherein the Court was miſinformed; for there was no new Declaration delivered, and that which the Defendants produced, was a Copy of the Iſſue only, and proved nothing but that there was a Miſtake, which appears by the Roll, and is admitted by the Plaintiff, otherwiſe we need not this motion.

Now, my Lord, that the Defendants Appearance was to the Declaration delivered in the Country, is plain, for there was no other Declaration delivered, nor was therein any other for them to appeal to; beſides, 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 confeſſing Leaſe, Entry and Ouſter, then that Judgment ſhall be entred againſt the Defendant Goodluck, &c.

Now, my Lord, I would know what Declaration the Defendants were to appear to; it muſt be a Declaration againſt Goodluck; and what Leaſe the Defendants were to confeſs; 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 Miſtake, it would be hard upon us; but if they cannot, then the Declaration delivered againſt 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 greateſt 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 ſeveral of the Tenants that were not duly ſerved, on Condition the Plaintiff would try it at Bar; My Lord, that is an Argument againſt them, and brings us within the Benefit 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 Judgment by Warrant of Attorney; for it ſhould not be ſuppoſed that the Defendant gave a Warrant of Attorney to confeſs a void Judgment.

Now, My Lord, the Defendants conſenting 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, becauſe we are Purchaſors, for we give a Conſideration 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 amended, 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 Defendants 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 Proceeding, and it is precedent, and it is within the equitable meaning of the Statute, which intends 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 looked upon to be a Proceeding precedent to the Declaration, becauſe in another Action, and ſo it would be if a Man be arreſted de Placito tranſgr', ac etiam Bill', and the Plaintiff declares in Debt only, this is likewiſe departing from the Writ; but theſe are warranted by the Practice and Courſe of the Court, theſe Proceſſes being made uſe of only to force an Appearance; and the Plaintiff may then declare in Caſe of Treſpaſs or Debt, as he ſees good. Now My Lord, Declarations in Ejectment are the ſame thing, becauſe only made uſe of to force an Appearance, 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 Declaration againſt the now Defendant, is entred on the Roll, and is right.

But with Submiſſion, My Lord, the Declaration 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 ejecer'. 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 Commencement 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 Michaelmaſs. If the 10th of Aril 1697. inſtead of 1696. and where the Court can by the Record 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 many 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 Declaration againſt the caſual Ejector being right, proves this the Fault of the Clerk in tranſcribing this wrong, though the Declaration 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 Attorney 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 general 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 Reſtriction hath no relation to the particular defects that were mentioned before, whereof ours is one, but to the general words only; 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 amend, is not matter of Subſtance, yet ought to be amended to avoid Abſurdity.

I muſt confeſs, that if this had been a Demiſe 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 before Trinity Term 1696. the Plaintiff's Leſſors 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 execution, 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 being 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 amended after Verdict.

Lees and Sir Nathaniel Curſon, Mich laſt. Bar. in Ejectment, wherein the Plaintiff's Leſſor being 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 ſecurity, the Judge referred the matter to the Court of Common Pleas, who amended it, though never right in any of the Proceedings.

The Biſhop of Worcester's Caſe in this Court,15 Car. 1. Haſlefoot and Cade, after Verdict the day in Record is altered after Verdict. where there were five Defendants and but three of them pleaded, and after Verdict amended, and the Verdict was recorded againſt two, that no Iſſue was jonyed againſt in the Record of Ni. pr.

Camberlain againſt the Hundred of Tundring upon the Statute of Hue and Cry, 14 Car. 2. 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 Amending, if it had been before Trial, would not have altered the Iſſue, or anywiſe 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 denied; 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 Conſideration under a Title of above Sixty years Poſſeſſion. And having now upon a fair Trial, and a full Evidence obtained a Verdict, 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 Executions, 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 amended, and Mr. Levet brought a new Trial and recovered.

Declarations when amendable or not.

In Ejectment where the Title is material,Declaration amended after Plea, without paying Coſts. 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 Declaration cannot be amended,After Verdict and Judgment no Amendment of a Declaration. for that might attaint the Jury: As in Ejectment of the Rectory of H. and other Tenants, virtute cujus intravit in tenementa praedicta. Verdict and Judgment de Rectoria & Tenementis praedict', Aliter in Judgment and Acts of the Court. 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 enough, (Tenements) include a Rectory. 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,Declaration of an Houſe lying in two Pariſhes, and the Houſe lies in one, it's good. 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 Tenements are;It muſt be alledged in what Vill the Tenements are. 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,Where the Pernomen is not good. 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 Meadow, 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 demiſed to him by J. S. and J. N. in forma praedicta. 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 Plaintiff entred into the Premiſſes demiſed to him in forma praedicta, Forma praedict' how conſtrued. 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 Acres out of which he was ejected;Declaration need not be of more Acres than he was ejected. and a demiſe may be pleaded of any Parcel without 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. One fictitious Leaſe to A. and another to B. the ſame term, the laſt is not good. 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 dicitur.

As to the Form.

Ejectment was againſt two,Declaration againſt two, expulit. and the Declaration was intraverat & expulit; and it was amended, Yelv. 223.

Vi & armis are left out in the Declaration,The Omiſſion of vi & armis in the Declaration. 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 Judgment 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 Error 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. The Omiſſion of Extratenet in the Declaration. 60, 71. becauſe the Plaintiff did not ſay in his Declaration Extratenet; but per tot' Cur' thoſe Words were not material; for if the Defendant 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 Declaration 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 intendment and Conſtruction of Law,Demand of a part without ſhewing into how many parts divided. 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 demand 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, Declaration in Ejectment with Quod cum, is good, not ſo in Treſpaſs. it's good here, becauſe he cannot have the Action without a Leaſe; but in Treſpaſs, as Aſſault and Battery, &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. Sherland'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. Ejectment for ſo many Acres of Meadow, and ſo many Acres of Paſture, on Non culp' the Jury find a Demiſe de Herbagio & Pannagio of ſo many Acres.De Herbagio. Per Cur' by the ſame Reaſon that an Ejectment lies of a Leaſe of Herbage, by the ſame Reaſon the Plaintiff ought to declare accordingly; and Herbage does not include all the Profits of the Soil,Herbage does not include all the Profits of thd Soil. but only part of it, Hardr. 330. Wheeler's Caſe in Scacario.

The Form of a Declaration from a Parſon 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 reſpondend W. I. de plito quare vi & armis unum Meſſuagium unum Gardinum decem acras terre tres acras prati & quatuor 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. Attornat 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 finem & terminum quin que annorum extunc ꝓxime ſequen & plenarie complend & finiend 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 Regis 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 grave damnum, &c. & contra pacem, &c. On. de dicit quod deteriorat eſt & damnum het ad valentiam decem Librarum & inde ꝓduc 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. Wart ſſ. in cuſtod Marr Mareſe Dom Regis coram ipſo Rege exiſten ꝓ 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 dimiſiſſet 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 ꝓxime ſequen & plen • r̄ & finiend complend virtute cujus quidem dimiſſionis idem T. in tenementa p̄dicta cum p̄tin intravit & fuit inde poſſeſſionat quouſ que p̄dict Iacobus poſtea ſcilt eodem ultimo die Ianuarij anno Regni dict Dom Regis nunc viceſimo ſupradict vi & armis, &c. in tenementa p̄dicta cum pertinen in & ſuper poſſeſſionem ipſius T. inde intravit & ipſum 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 ꝓdue Sectam, &c.

In the Office of Pleas in the Exchequer.

A. B. Derb ſſ. debitor Dom Regis nunc venit coram Baronibus hujus Scacarij duodecimo die Februarij hoc Termino p C. D. Attorn 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. (ꝓut ſupra in B. R.) ad vamnum ipſius A. decem Librarum Quo minus, &c. Et inde producit 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 Trinity Term appear to this Declaration, and make him or themſelves Defendants thereunto, 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 Poſſeſſion.

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 Defendant 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 entred 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 appear, the Court upon Motion will order Judgment to be entred againſt the caſual Ejector; for if the Defendant plead nothing to this Action,No Judgment againſt the caſual Ejector but by motion of the Court. but let it paſs by Nihil dicit, the Judgment cannot be had upon a common 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,What is to be done after the Declaration delivered. the Perſon 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 dimiſſione E. P.

ORdinat eſt p Curiam ex aſſenſu I. H. Attornat quer̄ & I. R. Attornat ꝓ 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 adinde generalem exitum hoc Termino & ad Triac̄onem ſuperinde habend idem T. comparebit in ꝓpria perſona ſua aut p ejus Concilium vel Attornat Et cognoſcet dimiſſionem intrationem & actualem expulſionem vel quod in defectu inde intretur judicium verſus Def. G. M. caſualem 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 advantagium verſus querent ꝓ ejus non ꝓſecutione ſuper Triatione occaſionat p hujuſmodi defaltam ſed quod p̄dict T. ſolvet querenti cuſtagia Prothonotar̄ ꝓ inde taxand Et ulterius ordinat eſt quod dimiſſor querentis ſit onerabilis cum ſolutione 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 Ballium & recipiet narrationem in plito Tranſgreſſionis & Ejectionis Firme & plitabit adinde non culp▪ & ſuper triatione exitus cogn dimiſſion intration & actualem Ejectionem & ſtabit ſuper titulum 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 ꝓſequi 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 ꝓpter aliquam aliam cauſam ꝓ qm non cognoſt dimiſſion intrac̄on & actualem ejectionem 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 Judgment against the caſual Ejector.

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

T. S. maketh Oath, That he this Deponent on Thurſday the—day of —laſt paſt did deliver unto J. D. Tenant in Poſſeſſion of the Premiſſes in queſtion, a true Copy of the annexed Declaration, 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 Tenements within ſpecified, in your Poſſeſſion (whereunto 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 Superſcription this Deponent did then read to the ſaid T. D. and acquainted him with the Contents 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 therewith.

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 thereof to C. D. Tenant in Poſſeſſion of the Reſidue of the Premiſſes in question; upon which ſaid ſeveral Copies was ſubſcribed or indorſed to this effect, &c. Which ſaid ſeveral Indorſements he the ſaid Deponent did read to the ſaid ſeveral Tenants, &c.

What ſhall be a good Plea in Abatement.

Per Cur', That the Plaintiff had another Ejectment depending. It is a good Plea in Abatement of Ejectione Firme in B. R. that the Plaintiff had another Ejectment for the ſame depending in the Common Bench, Moor p. 539. Digby and Vernon.

In Ejectione Firme, Action commenced▪ and the Term expires pendant the Suit. if the Term be expired before the Action brought, the Writ ſhall abate, becauſe he ought to recover the Term and Damages; but if he commence the Action before the Term expire, and it expires pendent the Writ, there it ſhall not abate, but he ſhall recover Damages, Dyer 226.

Entry of the Plaintiff hanging the Writ,Entry of the Plaintiff hanging the Writ. ſhall abate the Writ.

In Williams and Aſhet's Caſe the Defendant would have pleaded Entry after the Verdict in Abatement of the Writ,Entry after the Verdict, and before the day in Bank, is not Error. but it was hold clearly he had not day to plead it, but it is put to his Audita Querela. But in Parkes and Johnſon's Caſe, in Ejectione Firme the Error aſſigned was, That the Plaintiff after Verdict, and between the day of Niſi prius, and the day in Banco, had entred, whereby his Bill was abated, and demurred thereupon: Per Cur' this cannot be aſſigned for Error; for it proves the Bill is abateable, but is not abated in fait; neither is it material to aſſign it for Error; for upon ſuch Surmiſe which goes only in Abatement, the Judgment ſhall be examined, Cro. El. 181. Aſhet's Caſe. Cro. El. 767. Parks and Johnſon.

The Plaintiff declares of one Meſſuage and forty Acres of Land in Stone. Abate, becauſe he ſhews not in which of the Vills the Lands lie. The Defendant imparles till another Term, and then pleads, That within the Pariſh of Stone are three Vills A. B. and C. and becauſe the Plaintiff does not ſhew in which of the Vills the Lands lie, he demands Judgment of the Bill, & quod ob cauſam praedict' Billa praedicta caſſetur. The Plaintiff demurs, and adjudged for him.After Imparlance no Pleading in Abatement, and why. For, 1. after Imparlance the Defendant may not plead in Abatement of the Bill, for he had accepted it to be good by his Entry into defence, and by his Imparlance 2. Reg. Where a Man pleads in Abatement, he ought to give to the Plaintiff a better Writ. The matter of the Plea is not good, becauſe the Defendant does not ſhew in which of the Vills the Meſſuage and forty Acres lie. And where a Man pleads in Abatement, he ought to give the Plaintiff a better Writ, and upon Demurrer there ſhall be a Reſpondeas Ouſter, Yelv. 112. Tomſon and Collier.

After Verdict for the Plaintiff (the Queſtion being brought againſt Baron and Feme) that the Husband was dead ſince the Niſi Ejectment againſt Baron and Feme; Baron died ſince the Niſi prius, and before the day in Bank, the Action continued againſt the Wife. prius, and before the day in Bank; and whether the Bill ſhould abate in all, or ſhould ſtand againſt the Feme, was the Queſtion; and becauſe it is in Nature of an Action of Treſpaſs, and the Feme is charged for her own Fact, it was adjudged that the Action continued againſt the Feme, and that Judgment ſhould be entred againſt her ſole, becauſe the Baron was dead, Cro. Jac. 356. Rigley and Lee.

Ejectione Firme by J. S. againſt N. and O. N. Where the Plaintiff by his demand, confeſſeth the Writ abateable. appears and pleads the General Iſſue, and Proceſs continues againſt the other until he appears, and then he appears and pleads an Entry into the Land puis darrein Continuance. Judgment de Brev'. The Plaintiff upon this Plea demurs in Law, Curia adviſare; and in the interim the firſt Iſſue was found pro Quer' verſus N. and the Plaintiff prays his Judgment. He ſhall not have it, becauſe the Plaintiff by Demurrer in Law had confeſſed the Writ abateable; and the Writ by the Entry of the Plaintiff was abated, in as much as the Term is to be recovered, Dyer 226. Nevill's Caſe.

To the ſame purpoſe is the late Caſe of Boys and Norcliff.

In Ejectione Firme the Queſtion was, if the Entry into the Land after the day of Niſi prius, and before the day in Bank, may be pleaded in Abatement; and if ſuch Entry puis darrein Continuance, be a Plea in Abatement. Note, this was in Error out of the Common Bench, and held by the Court of the King's Bench, that it is not Error, yet entry will not revive the Term, becauſe▪ it's only in Abatement,Entry before the Niſi prius to be pleaded at the Aſſiſes. and there is a Diverſity between this and Death, 1 Bulſtr. 5. And it's uſual if the Entry be before the Niſi prius, to plead ſuch a Plea at the Aſſiſes, and if it be omitted, the Advantage is loſt; but not ſo in caſe of Death: By Death the Writ is actually abated,Difference between Entry after Verdict and Death. there being no time to plead it in Court, but Entry muſt be pleaded puis darrein Continuance in Abatement only, Sid. p. 238. Boys and Norcliff. 1 Keb. 841, 850. meſme Caſe.

Shall not abate by the Death of the Leſſee.Not abate by the Death of the Leſſee. Vid. 3 Keb. 772.

Of pleading to the Juriſdiction: Coniſance of Plea, how to be demanded and allowed, and how pleaded.

This Plea was formerly allowed of, and ſo is ſtill in ſome Caſes.

Now every Plea which goes to the Juriſdiction of the Court, Regula, for a Plea to the Juriſdiction of the Court. ought to be taken moſt ſtrong againſt him that pleads it; and to this purpoſe there is a pretty Caſe.

In Ejectment the Plaintiff declares of a Leaſe made at Haylſham; Al' Juriſdict'. the Defendant pleads, That Haylſham praedict. • ubi tenementa jacent, is within the Cinque-Ports where the King's Writ runs not;Cinque-Ports. and ſo he pleaded to the Juriſdiction of the Court. The Plaintiff reply'd, That the Town of Haylſham was within the County of Suſſex, abſque hoc, that it was within the Cinque-Ports. The Defendant demurs,Travorſe. becauſe he ought to have traverſed abſque hoc quod Villa de Haylſham ubi tenementa jacent, is within the Cinque-Port; for the truth was, it was part in the Cinque-Ports, and part in the County of Suſſex, and the Land lies in the part which is in the Cinque-Ports; but per Cur' the Traverſe is good, and the Bar is naught. The Defendant in his Bar ought to have made his Diſtinction, and every Plea which goes to the Juriſdiction of the Court, ought to be taken moſt ſtrong againſt him that pleads it, and the Traverſe here ought to be to the Town, and not to the ubi, which was idle; for the Law ſaid as much, and we do not imagine any Fractions of Towns, Winch. p. 113. Auſtin and Beadle. Cro. Jac. 692. meſme Caſe. Hutton p. 74. meſme Caſe.

Note, He who would demand Coniſance of this Plea, ought to ſhew his Warrant of Attorney in Latin, Sid. 103. in the Biſhop of Ely's Caſe.

The Attorney General in Hales and Jull's Caſe prayed Allowance of the Plea,Cinque-Ports. that the Lands in the Ejectment were within the Cinque-Ports, which the Court granted, there being no Imparlance General or Special, both which affirm the Juriſdiction of the Court; and at the Venire fac' the Plaintiff may ſuggeſt the Lands to be within the Cinque-Ports, and have it of Places adjacent within the County, 1 Keb. 65,

Sir Edward Turner in Ejectment, 〈◊〉 . Coniſance not allowable on Suggeſtion, but it muſt be averred on Record. ore tenus, ſhewing his Warrant of Attorney, demanded Coniſance for the Biſhop of Ely; per Cur' it's not allowable on Suggeſtion, which is Cinque-Ports, Ancient Demeſne, &c. It muſt be averred on Record; for tho' the Court takes notice that Ely is a Royal Franchiſe, yet this muſt be ſo averred or pleaded, and may be after Imparlance,It muſt be averred or pleaded, and may be, after Imparlance in Ejectment. when any third Perſon is concerned ſince the new way of Ejectment uſed in Green and Simpſon's Caſe, but Siderfin is contra that it cannot be pleaded after Imparlance, 1 Keb. 946. 948. Sid. 103.

The Defendant prayed to be admitted to plead in Abatement,Where Coniſance of Plea not allowed of in Ejectment. that the Lands in the Ejectment are within the Cinque-Ports, and the rather, for that he was made Defendant by the Rule of Court, with a ſpecial Imparparlance (with a ſalvis omnibus, &c.) Per Cur' let him plead in Chief; unleſs in Ancient Demeſne no ſpecial Plea has been allowed, becauſe the Lord would be prejudiced in a Trial at Common Law, 1 Keb. 725. Hale and Uppington.

In Hall and Hugh's Caſe in Ejectment of Lands,Part within and part without the Cinque-Ports, and demur. part within and part without the five Ports, the Defendant, after Imparlance, pleads in Abatement, That part of the Lands are in the Five Ports, and ſo prays Judgment, ſi Curia cognoſcere velit, &c. The Plaintiff demurs, becauſe it does not appear but that the Demiſe was out, and it's tranſitory, and may be laid any where, tho' the Leaſe was actually ſealed in another Place or County; and the Defendant may plead Non dimiſit, Where Non dimiſit pleadeded in Ejectment. as well as Not guilty. The Demiſe in this Caſe was laid at Maidſtone; per Twiſden this being an inferiour Court, they cannot try the Demiſe, which is iſſuable,Why the new Rule of confeſſing Leaſe, was introduced. and the great Miſchief that came in want of Proof of the Demiſe, was the cauſe of introducing the new Rule. In this Plea it was ſaid, That the Lands were in F. parcel of the Cinque-Ports, where time out of mind, the Writ of our Lord the King runs not, and that they of F. have always tried, &c. this is ill;Preſcription muſt be to the five Ports, and not to F. only. for the Preſcription ſhould have been annexed to the Five Ports generally, and not to F. only; and the Court ordered him to plead in Chief, and to confeſs Leaſe, Entry and Ouſter, or elſe that the Plaintiff take Judgment againſt his own Ejector, 2 Keb. 69, 79.

1. Whether Ancient Demeſne pleaded, be a good Plea? 2. Whether it may be pleaded after Imparlance?

In Cro. Car. 9. it was a Queſtion, Whether Ancient Demeſne may be pleaded after Imparlance.Ancient Demeſne a good Plea in Ejectment, and why. It's reſolved, That Ancient Demeſne is a good Plea in Ejectione Firme, and in Replevin; tho' it was doubted in our Books formerly, but that is fully ſetled in ſeveral Reports. In Alden's Caſe, 5 Rep. the Defendant pleads, That the Tenements in which, &c. were parcel of the Manor of O. in Com. S. Quod quidem manerium eſt de antiquo Dominico, &c. and demands Judgment, ſi Curia hic vult cognoſcere, &c. The Plaintiff demurs, and per Cur' it is a good Plea. 1. Becauſe it's the common Intendment that the Right and Title of the Land will come in Debate in this Action. 2. In this Action the Plaintiff ſhall recover the Poſſeſſion of the Land, and have Execution by habere fac' poſſeſſionem, and this Action ſavours of the Realty: So in Pymmock and Feilder's Caſe, where the Pleading was nice; the Defendant pleads that the Lands were Ancient Demeſne, and pleadable by a Writ of Right, Cloſe, &c. The Plaintiff ſhews that they were Copyhold Lands, Parcel of the Manor, and entitles himſelf by Leaſe under the Copyholder, and traverſeth, That they were impleadable by a Writ of Right Cloſe; and it was thereupon demurred, 1. Becauſe Copyhold-Land, parcel of a Manor of Ancient Demeſne, ſhould be pleadable there, and not at Common Law. 2. Becauſe this Traverſe that they were impleadable, is but the Conſequence of Ancient Demeſne. Per Cur' the Copyhold-Lands are as the Demeſnes of the Manor, and are the Lord's Freehold, and therefore not impleadable, but in the Lord's Court, and the Traverſe is well enough taken, 1 Bulſtr. 108. Cr. El. 826. 5 Rep. 105. Alden's Caſe. Stiles 90. Cro. Jac. 559. Pymmock and Feilder.

Now a Leaſe for years is intended to be taken real in a Recovery, and becauſe a Leaſe for years intended to be recovered in Ejectione Firme, it is a good Plea to ſay it is Ancient Demeſne, yet a Leaſe for years is but perſonal in Quality, 2 Rolls Rep. 181. Banister and Eyres.

The Defendant imparles in Ejectione Firme, Whether Ancient Demeſne is pleadable after Impalance. and after pleads that the Land is Ancient Demeſne, &c. & unde intendit quod Curia non vuit cognoſcere, &c. The Plaintiff demurs: Per Cur' this Plea is pleadable after Imparlance, becauſe if Judgment be given here the Lord will rever • e it by Diſceit, and the Judgment will be avoidable, and the diverſity is true,Regula. A Man may plead that which is in Bar after an Imparlance, but not that which goes to the Writ; and this holds in all Caſes but Ancient Demeſne. 2. The laſt Concluſion is Surpluſage;Concluſion of Plea. but if he had begun his his Plea. Actio non, it had been ill, notwithſtanding the Concluſion, ut ſupra. But the Defendant waved his Demurrer without Coſts, and pleaded to Iſſue, if Frankfee, or not: And yet Hetley ſaith, p. 117. It was agreed by all, that Ancient Demeſne is a good Plea in Ejectment, but not after Imparlance, Marſham and Allen's Caſ. Dyer 210. in margine.

But now if a Man come in and pray to be made Defendant, and to plead ſpecially Ancient Demeſne, he ſhall do it; and it's now uſed of Courſe to plead Dilatories after Imparlance,New Defendant not to plead Ancient Demeſne after the former Imparlance. 1 Keb. 361. Holiday's Caſe. But in 1 Keb. 706. by Windham the new Defendant (one that prays to be made ſo) may plead Ancient Demeſne after the former Imparlance, becauſe it's not any Ouſter of the Court of Juriſdiction. Cur' e contra. He ought to plead Not guilty perſonally, Roch and Plumpton's Caſe. And in 1 Keb. 755.Plea of Ancient Demeſne allowed the ſame Term, Snow and Cooley. The Court will allow Plea of Ancient Demeſne the ſame Term, contrary to the ordinary Rules in Ejectment. And in Sutton and Courtney's Caſe it was prayed by Council, That the Defendant might have Liberty to plead Ancient Demeſne to a Declaration delivered before the Eſſoyn of this Term,And how. as of laſt Term, which the Court granted, and ordered him to attend the Scondary to ſettle the ſaid Plea, which is uſually done by making the Plaintiff deliver a new Declaration, as of this Term, and ſo the Plea cometh quaſi before Imparlance, 2 Keb. 725.

In David and Lyſter's Caſe, Rolls ſaid Ancient Demeſne is a good Plea after Imparlance; for it goes in Bar of the Action it ſelf, and not in Abatement of the Writ, Stiles 90.

Plea puis darrein Continuance.

Ejectione Firme was brought for entring into three ſeveral Vills:Releaſe puis darrein Continuance before the Juſtices of Niſi prius▪ they can not take it. The Declaration makes mention of no Vill in certain. The Defendant pleads a Releaſe puis darrein Continuance before the Juſtices of Niſi prius. Per Cur' a Man cannot plead a Releaſe at the Niſi prius after Iſſue joyned, for ſo none ſhould have Judgment. When this Plea is pleaded, the Juſtices of Niſi prius cannot proceed to take the Inqueſt, and to this Plea of the Defendant, the Plaintiff cannot there reply, but he ought to reply in Bank. After Iſſue joyned, and a Venire fac' awarded in ſuch a Vill, the Sheriff returns null ti • l Vill, this is not good; for he cannot return that thing which is contrary to the Iſſue to avoid the Trial, à fortior' one of the Parties cannot plead ſuch matter at the Niſi prius; the Authority of the Juſtices of the Niſi prius is to take the Verdict of the Jury, and no other Plea: And the Juſtices of the Niſi prius have no power to amend any Fault in the Declaration; and when the Seſſions end, their Authority ceaſeth. Vid. Cro. Jac. 261. contra. 10 H. 7. 21. 1 Buſtr. 92. Moor and Brown. Yelv. p. 180. 1 Cro. Jac. 261.

In Ejectione Firme againſt two, one appears and pleads the General Iſſue, and Proceſs continues againſt the other, who now appears and pleads Entry puis darrein Continuance in Abatement of the Writ: Upon which the Plaintiff demurs; and after Iſſue was found for the Plaintiff,Demurrer a Confeſſion of the Entry. he ſhall not have Judgment, for the Demurrer is a Confeſſion of the Entry, and ſhall abate his own Writ; for in this Action the Term is to be recovered, aliter if he had imparled. Vide ſupra Plea in Abatement, Dyer 226.

Upon a Special Verdict in Ejectment, Releaſe pleaded at the day of the Argument. and a day given for Argument, before which the Defendant procures a Releaſe of all Ejectments, and at the day for the Argument, pleaded the Releaſe puis darrein Continuance, and good; aliter of a Releaſe between the Niſi prius and Day in Bank, becauſe there he had no day in Court, nor has he any Remedy but by Audita Querela, if the Plaintiff ſued Execution, 2 Rolls Abr. 467. Wykes and Bunbury. Cr. Jac. 646. Stamp and Parker.

Ejectment was brought of Lands in K. and two other Villages.Entry puis dar' Cont' pleaded at the Niſi prius, the Plea is receiveable. The Defendant pleads Not guilty; and at the Niſi prius pleaded, That the Plaintiff puis le darrein Continuance entred into a Cloſe, parcel' praemiſſorum, and him expelled; and a Demurrer upon it, becauſe he declared not in which of the Villages the Cloſe lay. Per Cur' this Plea is receivable, for it is matter in fait, and peremptory to him who pleads it; for as a Releaſe or matter in Bar may be pleaded, ſo may this, and is receivable at the Diſcretion of the Juſtices, if they perceive any Verity therein: So is Rolls Abr. 630. Moor and Hawkins. Cr. Jac. 261. Yelv. 180. Moor and Hawkins. 1 Brownl. 145.

In Ejectione Firme the Defendant may plead at the Aſſiſes before the Juſtices of Niſi prius, That the Plaintiff had entred into parcel of the Land mentioned in the Declaration puis darrein Continuance, the Juſtices of Niſi prius may accept the Plea, and diſmiſs the Jury; and tho' they do not give any day to the Parties in Banco, yet this is not any Diſcontinuance, altho' that the Plea be collateral; for the day of Niſi prius and day in Bank, are one day: For the Court in Bank gives day to the Jurors in Bank, Niſi prius Juſticiarii ad Aſſiſſas venerint, and to the Parties day is given there abſolutely. 2 Rolls Abr. 630. Moor and Hawkins. 1 Rolls Abr. 485. Sir Hugh Brown's Caſe.

In Ejectione Firme, By this Plea. the firſt Iſſue of Not guilty is diſcharged. after pleading Not guilty a Releaſe is pleaded puis darrein Continuance whereby the firſt Iſſue is diſcharged, which the Court granted. And tho' the Juſtices cannot try it at Niſi prius, unleſs they think it but Colour and inſufficient, yet if he think it ſufficient, he muſt ſign a Bill of Exceptions, for the Trial is Error; and ſo Yelv. Bill of Exception. 181. And in this Caſe the Releaſe of the Leſſor of the Plaintiff is but Colour: Alſo the Party cannot demur to ſuch Plea; alſo the Agreement to try and ſtand to the Title only, is no Cauſe to over-rule ſuch Plea; and per Cur' the Plea certified hither, was allowed notwithſtanding ſuch Agreement being gained after, 3 Keb. 67. Mich. 24. Car. 2. Carter and Haggard.

Accord and Satisfaction a good Plea in Ejectment.

H. P. brought Ejectione Firme againſt R. C. and A. his Wife, and A. D. for an Houſe in G. in, &c. upon Demiſe made by A. H. the 7th of April 8 Jac. for five years, and that the Defendant the 10 of April in the ſame year ejected him, &c. The Defendant pleads, That after the Treſpaſs and Ejectment (viz.) primo Maij Anno octavo ſupradicto apud G. praedict' talis inter R. C. praefat' H. P. tam de tranſgreſſione & Ejectione praedict' quam de omnibus aliis querelis debitis & debatis inter eos ante tunc habitis fact', ſive propter al', &c. habebatur concordia, that in Satisfaction thereof the ſaid R. one of the Defendants ſhould pay to the Plaintiff 6 l. 10 s. at the Feaſt of St. Michael then next enſuing, and that for the true payment of this he ſhall become bound in an Obligation of 13 l. and pleads performance of this, and the Receipt of the ſaid Sum at the ſaid Feaſt accordingly. And it was reſolved, That Accord in this Action is a good Plea, as being in nature of a Treſpaſs. And tho' the Term (which is a Chattel real) ſhall be recovered as well as Damages, yet it's a good Plea; and Accord and Satisfaction for one ſhall diſcharge all the Treſpaſſors and Ejectors. Vid. this Caſe argued, 2 Brownl. 128. 9 Rep. 77. Henry Peytoe's Caſe.

But now the Rule is to ſtand upon the Title only.

Aid prier; where Aid ſhall be granted in this Action, and in what Caſes not.

The Defendant juſtified as in his Franktenement the Reverſion to the King,The Defendant ſhall not have Aid of the King, and why. and prayed in Aid of the King, per Cur' he ſhall not have Aid in this Action, which is as a Treſpaſs upon this Plea; for he needs no Aid of the King to maintain this Plea. So in Allen and Hallowel's Caſe, the Defendant pleads, That the Queen was ſeized in Fee, and let it to J. S. for years by Patent, who let it to the Defendant, and prays in Aid of the Queen; and it was ruled to be no Plea, becauſe he is not immediate Tenant; wherefore a Reſpondeas Ouſter was awarded. And in Bridgman's Rep. 87. it is agreed, That the Defendant ſhall not have Aid of the King, becauſe he is not his immediate Tenant, and ſo no Privity between the King and him. And to the ſame purpoſe is Anderſon's Caſe in Hardreſs's Reports. The Defendant prayed in Aid of the King's Leſſee for 99 years for his Dutchy Land in truſt for the Queen, as part of her Joynture, and as Bailiff to them; and it was denied by the Court. And upon the General Iſſue it appears not whether the Right will come in Queſtion; and yet it's ſaid in the Counteſs of Kent's Caſe, 3 Jac. B. R. That in Ejectione Firme the Defendant ſhall have Aid of the King, becauſe by Intendment the Freehold ſhall come in Debate in this Action, 1 Rolls Abr. 407, 156. Bennet's Caſe. Cro. El. p. 374. Allen and Hollowell. Hardr. 179. Anderſon and Arundel. 1 Rolls Abr. 148.

But Aid lies in Ejectione Firme (of a common Perſon) when the Title of the Land is to come in queſtion.Defendant ſhall have Aid of a common Perſon. And if a Man recover in Ejectione Firme againſt J. S. who dies, in a Scire factas againſt his Heir, the Heir ſhall have Aid of him in whoſe Title his Anceſtor claims, 1 Rolls Abr. 161, 162.

In Ejectment the Defendant pleaded Not guilty,A Writ not to proceed (Regina inconſulta) allowed. and after Iſſue joyned, the Queen ſent a Special Writ to the Court, reciting, that how the Defendant was Tenant in Tail with divers Remainders over, the Reverſion to the Queen, and that her Reverſion might be prejudiced by this Trial. Wherefore it was commanded then not to proceed to the Trial of this Iſſue, Regina inconſulta. And it was a Queſtion much debated, whether this Writ were allowable or not, becauſe it is a perſonal Action only. Per Cur' this Writ ought to be allowed (as well as Aid prier) becauſe it appears to them, that the Queen may be prejudiced in her Title; and by the Writ there is a Recital of a Title in the Queen; and her Trial of Right is to be diſcuſſed in Chancery, In ſuch Caſe where the King's Trial of Right to be diſmiſſed. where the Queen's Records are to prove her Title; therefore per Curiam we ſhall not proceed without a Procedendo. Vid. 1 Anderſ. 280. Blofeild and Harris. Cro. El p. 417. Sale and Barrington. Moor 421. meſme Caſe. Hardr. 428.

In Treſpaſs for breaking his Cloſe.Recovery and Execution in a former Action pleaded in Bar. The Defendant pleads, That before this he had brought Ejectione Firme againſt the now Plaintiff, and recovered, and had Execution, &c. Judgment ſi actio. Per Curiam it is a good Bar, and the Concluſion of the Plea is alſo good. Judgment, ſi actio, without relying upon the Eſtoppel, 1 Leon. p. 313. Kempton and Cooper.

Ejectione Firme was brought againſt Drake and five others: Drake pleads Not guilty, the other five quoad 20 Acras plead Not guilty; and as to the Reſidue that long time before, &c. the Plaintiff in his Replicat' ſaid, He was poſſeſſed till by the ſaid five Defendants, who pleaded in Bar, he was ejected; and by his Declaration he has ſuppoſed himſelf to be ejected by all the ſix Defendants, and ſo a Departure from the Declaration in the number of the Ejectors: But Curia contra. Several Iſſue. For Drake by his ſeveral Iſſue which he has joyned with the Plaintiff upon Not guilty, is ſevered from the other five Defendants; and then when they plead in Bar, the Plaintiff ought to reply to them, without medling with Drake. So in Ejectione Firme of 20 Acres, the Defendant, as to 10 Acres, pleads Not guilty, upon which they are at Iſſue; and the Plaintiff replies, as to the other 10 Acres, and ſo was poſſeſt until by the Defendant of the ſaid 10 Acres he was ejected; this is good without ſpeaking of the other 10 Acres, upon which the general Iſſue is joyned, 2 Leon. p. 199. Holland and Drake.

It was moved for the Defendant,In this Action not to plead ſpecially without Conſent of the Plaintiff. that he might have Liberty to plead ſpecially in an Action of Treſpaſs and Ejectment, and not generally Not guilty, becauſe there had been matter given in evidence at a former Trial, which ought not to have been. By Rolls, if the other will not conſent, you ſhall not plead ſpecially, but proceed according to the Courſe of the Court, Stiles Rep. 412.

Note, The Defendant by Rule of Court,Defendant not to plead till Coſts aſſeſſed in a former Action was paid, and Security for new Coſts. was not to plead till Coſts paid, aſſeſſed in a former Action on Nonſuit, and that another Plaintiff might be named, or that Security be given to pay the Coſts, if the Plaintiff ſhould be Nonſuit again, Stiles p. 433.

Bar or Recovery in one Ejectione, how far a Bar or Recovery in another.

It was a Queſtion, Whether a Bar in one Ejectione Firme were a Bar in another?Bar in one Ejectione Firme, how a Bar in another. And Juſtice Berkley ſaid, It was adjudged upon this Difference, That a Bar in one Ejectione Firme is a Bar in another for the ſame Ejectment, but not for another and new Ejectment.Recovery in one Ejectione Firme a Bar in another. And in Godbolt's Rep. Caſe 128. in Treſpaſs the Defendant pleaded that at another time before the Treſpaſs, he did recover againſt the ſame Plaintiff in Ejectione Firme, and demanded Judgment. Per Cur' it is a good Plea prima facie, and that the Poſſeſſion is bound by it, for otherwiſe the Recovery ſhould be vain and ineffectual. And by Anderſon, If two claim one and the ſame Land by ſeveral Leaſes, and the one recovereth in Ejectione Firme againſt the other; that if afterwards the other bringeth an Ejectione Firme of the ſame Land, the firſt Recovery ſhall be a Bar againſt him. Per Rhodes, a Recovery in an ad terminum qui praeteriit, ſhall bind the Poſſeſſion, Godb. p. 109. no. 128. 3 Leon. 194.

In Treſpaſs for breaking his Cloſe, the Defendant pleads, before this, he had brought Ejectione Firme againſt the now Plaintiff, and recovered, and had Execution, Judgment, ſi actio. Per Cur' in 1 Leon. 313. Kempton and Cooper's Caſe, and 3 Leon 194. the ſame is a good Bar, and the Concluſion of the Plea is alſo good, Judgment ſi actio, without relying on the Eſtoppel and by two Juſtices it is no Eſtoppel; for the Concluſion ſhall be Judgment ſi actio, and not ſi ſerra reſpond', and it was well pleaded. For as by Recovery in Aſſiſe the Freehold is bound, ſo by Recovery in Ejectione Firme the Poſſeſſion is bound. And by Anderſon a Recovery in one Ejectione Firme, is a Bar in another, eſpecially if the party relieth upon the Eſtoppel; and altho' it be in an Action perſonal, and in the nature of a Treſpaſs, yet the Judgment is good. habeat poſſeſſionem termini ſui, during which Term the Judgment is in force; and it's no reaſon he ſhould be ouſted by him againſt whom he recovered, for ſo Suits would be infinite; but this grave Advice is now laid aſide, 4 Leon. 77. Spring and Lawſon.

Note, In Ejectione Firme againſt two Defendants, one confeſſeth the Action, and the other pleads in Bar Non Culp'; per Cur', tho in Treſpaſs againſt two,2 Defendants, one confeſſeth, the other pleads in Bar, he cannot leave the one, and proceed againſt and the one makes Default, and the other confeſſeth the Action, he may well relinquiſh his Suit againſt him who makes Default, and proceed againſt the other which confeſſeth or pleads in Bar, becauſe this Suit is only in point of Damages; but not ſo in Ejectment he cannot relinquiſh his Suite againſt one, and proceed againſt the other; for if ſo, any Man may be tricked, 2 Bulſtr. 113.

Expiration of the Term in Ejectione Firme, is no Plea, Latch. 106.

Upon a Trial at Bar between Odil and Terril, a Juror was challenged, for that he ſaid to one of the parties, Provide you to pay, for if I am ſworn, I will give the Verdict againſt you. And that this is true, the Parties to whom the Words were ſpoken, did offer to depoſe the ſame; and the Queſtion was, if he ſhould be ſuffered to ſwear this, he being one of the parties; and he was allowed by the Court to be ſworn to prove the Challenge good;the other. The Juror had bought Land of the Eeſſor. and for this Cauſe the Triers found him not to be indifferent, and ſo he was withdrawn. Another Juror was challenged in this caſe, for that he had bought Land of one of the parties in the Suit (viz.) of the Leſſor, and that the Leſſor did owe to this Juror 10l. and notwithſtanding this Challenge the Triers found him indifferent, otherwiſe per Cur' if the Juror had owed Money to one of the parties, 1 Bulst. 20, 21. Odil and Terril.

Who ſhall be good Witneſſes in this Action, or not.

It is agreed, That a Truſtee cannot be a Witneſs concerning the Title of the ſame Land,Truſtee. the Intereſt in the Law being lodged in him. But by Hales a Truſtee may be a Witneſs againſt his Truſt, 2 Sid. 109.

In Ejectment the Plaintiff challenged B. a Witneſs to a Deviſe, becauſe he was Truſtee in a Will, and had an Annuity; but he having releaſed both before the Suit, the Court held him to be a good Witneſs, or if he hath received it, and tho' it be after the Action brought, Sid. 315.

Intereſt in Equity diſables a Man to be a Witneſs,Intereſt in Equity. but one who hath an equitable collateral Title may be a Witneſs.

Pariſhioners may be a Witneſs to a Deviſe by which the Pariſh claims Lands to the Relief of the Poor.Pariſhioners.

Exception was taken againſt a Witneſs produced to prove the Leaſe of Ejectment,Witneſs had the Inheritance becauſe he had the Inheritance in the Lands let; but it was urged by the other ſide, That the Defendant did claim under the ſame Perſon that the Plaintiff did, and ſo the Witneſs was admitted to be ſworn, Stiles Rep. 482. Fox and Swann.

One Coparcener cannot be Evidence for another in Ejectment,Coparceners. becauſe ſhe claims by the ſame Title, tho' ſhe is not Party to the Suit; but the Daughter of her Siſter may be ſworn; for altho' ſhe be Heir, yet her Mother may give the Lands to whom ſhe will, being Fee-ſimple, P. 13 Car. 2. B. R. Truel and Caſtel.

In Ejectment of Tythes the Plaintiff excepted againſt a Copyholder in Reverſion after an Eſtate Tail,Copyholder in Reverſion after an Eſtate Tail. for a Witneſs to prove the Boundary of a Pariſh, and he was ſet aſide for the poſſibility which makes him partial, M. 20 Car. 2. B. R. Hitchcok's Caſe.

In Ejectment of the Manor of S. Treſpaſs. on Iſſue out of Chancery to try the Number of Acres, the Defendant excepted to a Witneſs that had been a Treſpaſſor, as Servant to my Lord Lee in the Lands in Queſtion, an Action being depending: The Court ſet him aſide, and thereupon the Plaintiff was Non-ſuited, M. 20 Car. 2. B. R. Tuck and Sibley.

Exception was taken againſt a Witneſs to prove the Execution of a Deed by Livery and Seiſin,Eſtate at Will. becauſe he had an Eſtate at Will made to him of part of the Land, but it was diſſallowed, vide Mod. Rep. 21, 73, 74, 107. Hob. 92.

In Ejectment at Tryal at Bar,Executor of the grant of a Rent. the Title of the Leſſor of the Plaintiff was upon the Grant of a Rent, with power to enter for Non-payment; the Executor of the Grantor was produced as a Witneſs for the Defendant. It was objected againſt him, That in the Grant of the Rent, the Grantor covenanted for himſelf and his Heirs to pay it, and ſo the Executor being obliged, he was no competent Witneſs, 1 Vent. 347. Cook and Fountain.

On on a Trial at Bar per Cur. If one of the Witneſſes had part of the Lands in Queſtion,The Witneſs Sells part of the Lnd before Tryal. and he ſells or diſpoſeth of it after his coming to London, or at any time after he had notice of Trial; he ſhall not be received to give Evidence, tho' he ſell bona fide, and upon a valuable Conſideration; and althô he himſelf be not Occupier of the Land, nor had been after the Writ purchaſed, but another by his Commandment, the Court will not ſuffer him to be a Witneſs, becauſe if Verdict paſs againſt him, he who acted by his Commandment may charge him in Action on the Caſe;Witneſs claimed Eſtate by Title Paramount both there Titles. but upon Examination it appering, That the Witneſs claimed an Eſtate for Life by Title Paramount both their Titles (viz.) Plaintiff and Defendant) he was Sworn, Siderf. p. 51. Wicks and Smallbrok's Caſe.

Exception was taken againſt a Witneſs to prove Execution of a Deed of Feofment by Livery and Seiſin; Two Witneſſes were ſubſcribed to prove the Livery and Seiſin,One who had Eſtate at Will to prove a Livery. afterwards one of thoſe Witneſſes had an Eſtate at Will, made unto him of part of this Land, and becauſe being produced as a Witneſs, to prove the Execution of the Deed was excepted againſt, becauſe he was a party now intereſted in the Land, and ſo his Oath was to make his own Eſtate good. But per Cur' he may well be Sworn a Witneſs to prove the Livery and Seiſin, this being in affirmance of the Feoffment, 1 Bul. 203.

The Father teſtified a Deed in Perſuance and Affirmance of a Leaſe,Father a Witneſs for the Son. made to his Son by himſelf, which the Court allowed, his Intereſt being paſt away, 1 Keb. 280. Jay and Ryder.

In Ejectment on Extent, on Mortgage on Trial at Bar. The Defendant excepted to the Plaintiffs Witneſs, becauſe his Father paid a Debt as Security with the Defendants elder Brother for the Defendants Father; but there being no Counterbond, and therefore doubtful in Equity, whethere he as Heir could recover any thing againſt the Defendant as Heir, the Court Swore him; but if he were to let himſelf into a certain Intereſt, thô but in Equity, the Court will ſet him aſide, 2 Rol. 345. Vincent and Tirrinſharp.

In Ejectment, one Baker who had been Sollicitor for P. the Defendant was produced as a Witneſs, concerning the Raſure of a Clauſe in a Will ſuppoſed to be done by P. The Queſtion was,In what Caſe Sollicitor, &c. not to give Evidence againſt his Clyent. if he ought to be examined about this, becauſe having been Sollicitor, he was obliged to keep his Secrets; but it appearing that B. had made this Diſcovery to him, about which he was now to give his Evidence, before ſuch time as he had retained him, Per Car. He was Sworn, aliter, if he had been retained his Sollicitor before. The ſame of an Attorney or Councellor, 1 Vent. 179. Cutts and Pickering.

What ſhall be good Evidence in this Action and what not.

There are ſeveral Caſes in our Books concerning Evidence upon Leaſes made to try the Title, which I ſhall not at preſent meddle with, they being of no great uſe ſince the alteration of Practice in this Action; but I ſhall mention thoſe which are of Dayly uſe, and principally aim at ſuch Evidence which is allowed, or diſallowed as to the proving of Title to Land, without the knowledge of which there are infinite Failures and Non-ſuits in this Action; and I ſhall firſt begin with Matters of Record, and then Matters of Fait, Bills, Anſwers, Depoſitions and other Sorts of Evidences, as to Antiquities, Pedigrees; and what Evidence a Man muſt have to make Title in ſeveral Caſes. And Laſtly, Treat of Demurrers upon Evidence and Exemplifications of Verdicts.

As to Matters of Record.

If a Deed be Pleaded the Party muſt ſhew it in Court;Record ſhewed it Court. ſo if a Record be Pleaded, it muſt be ſub pede ſigilli; but Evidence its not abſolutely neceſſary to ſhew either, if it can otherwiſe be proved to a Jury, as in 1 Vent. 257. In Evidence for Lands in Ejectment in Ancient Demeſne, the Court admitted of Evidence to prove a Record to cut off the Intail (which was loſt) and it may be proved to a Jury by Teſtimony; as the Decree in Henry the Eighth's time, for Tithes in London is loſt; yet it hath been often allowed there was one. And further in this Caſe it appeared, That part of the Land was Leaſed for Life, and the Recovery with a ſingle Voucher was ſuffered by him in Reverſion,Long Poſſeſſion. and ſo no Tenant to the Praecipe; yet in regard the Poſſeſſion had followed it a long time, the Court would prefume a Surrender.

The Copy of a Record may be ſhewed and given in Evidence to a Jury,Copy of a Record. for Records are of ſo high a nature, and have ſuch great credit in the Law, that they cannot be proved by any other means than by themſelves, and no Raſure, or Interlineation ſhall be intended in them; and therefore a Copy of a Record being teſtified to be true, is permitted to be given in Evidence; but the ſure way is either to exemplifie it under the great Seal, or at leaſt under the Seal of the Court, 10 Rep. Leyfeild's Caſe.

In Ejectment for Lands in Brecknockſhire; Upon Not guilty and Tryal there, The Defendant gave in Evidence, a Recovery in a Writ of Quod ei deforceat, which is their Writ of Right at the great Seſſions there; and Iſſue being tendered therein, the Defendant produced an Exemplification of the Record under the Seal of the great Seſſions, but not the Record it ſelf. The Plaintiff Demurs to the Evidence, and the Queſtion was, whether the Exemplification maintained the Iſſue or not. It was agreed, That a Sworn Copy of a Record in Wales might be given in Evidence,Exemplificacation. but not an Exemplification, becauſe the Court here ought not to take notice of ſuch an inferior Seal; but if it were Exemplified under the great Seal, it would be Evidence and Proof tho the Record it ſelf were loſt. And yet Whitehead's Caſe was, That an Exemplification under the Seal of the Mayor of Briſtol, of a Recovery ſuffered there under the Town Seal, ſhould be given in Evidence, tho the Record it ſelf could not be found.

Note, It muſt be given in Evidence in the like manner as it is to be pleaded, and that is under the great Seal, Hardreſs 118, 119, 120. Henry Olive verſus George Gowin. And by Hales, Exemplification of a Recovery in the Marqueſs of Wincheſter's Court, in ancient Demeſne was allowed becauſe it was ancient. One had gotten a preſentation to the Parſonage of G. in Lincolnſhire, and brought a Quare Impedit, and the Defendant Pleaded an Appropriation, and there was no Licence of Appropriation produced, but becauſe it was ancient the Court will intend it; and in an ancient Recovery, they would not put one to prove Se • ſin of a Tenant in a Praecipe, Mod. Rep.

The Scyrograph of a Fine may be given in Evidence.Scyrograph of a Fine. (but not delivered to the Jury, 2 Sid. 145, 146.) in a general Iſſue in Aſſize, Plowd. Com. 411.

Note, Fine and Non-claim. If a Fine be given in Evidence with five years Non-claim, the Fine muſt be ſhewed with Proclamations under Seal, and the Scyrograph will not ſerve.

A Fine or Recovery,Fine, Recovery. may be found by the Jury without ſhewing it under Seal; but they cannot find againſt what is admitted by the Record, Sid. 271.

The Copy of a Recovery was ſuffered to be given in Evidence,Copy of a Recovery. the Recovery it ſelf being burnt, Mod. Rep. 117. Green and Proud.

The Court allowed an old Recovery,No Tenant to the Praecipe proved. thô no Tenant to the Praecipe could be proved, but it ſhall be intended, Cro. Jac. 455. Mod. Rep. 117.

Nothing may be delivered in Evidence to a Jury, but that which is of Record or under Seal, but by conſent, 2 Sid. 145.

As to Letters Patents, vide infra Deeds. Dyer 167. The Jury find the Conſtat of Letters Patents.

One may not ſhew in Evidence to a Jury an Inſpeximus of a Deed inrolled in Chancery, Inſpeximus. if it be not a Deed of Bargain and Sale inrolled there; for if it be a Deed of Feoffment, the Party muſt ſhew the Deed it ſelf, for the Inſpeximus is no matter of Record,Inſpeximus. Stiles Rep. 445. But by Rolls, tho' the Inſpeximus be the Inſpeximus of the Inrolment, and not of the Deed it ſelf, yet if it be an Ancient Deed, it may be given in Evidence.

The Earl of—being a Popiſh Recuſant convict,Conviction of a Recuſant, the Record being burnt, proved in Evidence. preſented the Leſſor of the Plaintiff to a Rectory, who was inſtituted and inducted, but the Record of the Conviction was burnt (as was ſuppoſed) in the Fire at the Inner-Temple. The Defendant offered to prove it by the Eſtreats thereof in the Exchequer, and by the Inquiſition found and returned here of Recuſant's Lands. Per Hale & tot' Cur', in ſuch a Caſe as this a Record may be proved by Evidence, becauſe the Converſion here is not the direct matter in Iſſue; as was Sir Paul Pinder's Caſe in an Action of Trover and Converſion for Goods, the Proof depended upon a Fieri facias and a Venditioni exponat; and yet in that Caſe, becauſe the Fieri facias could not be found upon Record, Fieri fac' proved in Evidence. it was admitted to be proved in Evidence, Hardr. 323. Knight and Dawler.

But when he that ſues an Elegit, brings an Ejectment to try the Title, Elegit muſt be ſhewed. he muſt in Evidence ſhew the Elegit filed.

A Tranſcript of a Record, or Inrolment of a Deed,Tranſcript of a Record, or Inrolment of a Deed. may be given in Evidence, for they are things to be credited, being made by Officers of Truſt, but Inrolmene of a Deed which needs no Inrolment, is no Evidence.

In Ejectment of Lands in the Pariſh of Long Hope; the Defendant pleads that they are part, and held of the Manor of Long Hope, which is ancient Demeſne; and on Iſſue thereupon Doomſday-book was brought in,Doomſday-Book. by which it appeared, That the Manor of Hope is the Land of W. de B. who held of the King; which Per Curiam doth not maintain the Iſſue, unleſs the Defendant had pleaded further, that the Lands are as well known by the Name of Hope as Long Hope; this Book is the Tryal, and the Court cannot take notice of the ſame. Reſpondeas Ouſter, 1 Keb. 520. Holdy and Hodges.

Matters of Fait.

As for Deeds ſhewed forth, and given in Evidence, the Learning thereof is excellently delivered in Dr. Leyfeild's Caſe, 10 Rep.

It is a Maxim in Law, That he which is Party or Privy in Eſtate or Intereſt, and he that juſtifies under him, ſhall ſhew the Original Deed to the Court, for this Reaſon; becauſe to every Deed two Things are requiſite. 1. That it be ſufficient in Law, and this is called the Legal Part, and the Judgment of this belongs to the Judges. The other concerns Matters of Fact (viz.) if it were ſealed and delivered, and this is tried per Pais; or whether it be raſed or interlined, or upon Limitation, Condition, Revocation, and the like. Therefore it hath been always thought dangerous to permit any upon the General Iſſue to give in Evidence, that there is ſuch a Deed which they have heard or read, or to prove it by a Copy.Deed proved by Copy or Teſtimony. But in Caſes of Extremity, as where Deeds are burnt by Fire; upon the General Iſſue the Judges will ſuffer to prove a Deed to a Jury by Teſtimony.

And what hath been ſaid as to the Legal Part of a Deed, holds as to Letters Patents.

A Deed cancelled by Practice,Deed cancelled. was allowed to be read in Evidence in Action under that Deed, the Practice being proved, Hetley 138.

Leaſe and Releaſe were given in Evidence to intitle the Plaintiff, and they were both named haec Indentura, and were not indented, yet good by Hales, Norf▪ Aſſiſes, 1668. Bryant's Caſe. In Negus and Reynell's Caſe, in Evidence to a Jury it was held, 1. That a Proof that there was a Revocation, is ſufficient for the Heir, without producing the Deed it ſelf.Leaſe and Releaſe. 2. A Leaſe recited in the Releaſe, was admitted to be proved by Witneſſes to the Releaſe, without ſhewing the Leaſe it ſelf, which was imbezelled by the Leſſor of the Plaintiff, P. 13 Car. 2. B. R.

And the Copies of Deeds have been admitted in Evidence, the Original agreed to be burnt. So in Ejectment at the Bar, a Copy of a Deed burnt, made by the Witneſs, to carry about to Council, was allowed for Evidence; ſo was Do • ſe's Caſe at Oxon. and Thyn's Caſe. The Teſtimony of a Witneſs of the Contents of a Deed burnt, but ſuch Witneſs was refuſed at Lent Aſſiſes by Windham, tho' the Deed were in the Adverſaries own Cuſtody, Mod. Rep. p. 4. M. 21 Car. 2. B. R.

It is ſaid, That a Copy of a Deed is good Evidence where the Defendant hath the Deed, and will not produce it, Mod. Rep. 2 Keb. 483. 15 Car. 2. Stroud and Hill.

One claimed under a Leaſe for years of a Prebend, &c. and after he claims under a Leaſe from a Nominal Prebendary thereof, founded in the Cathedral Church of Lincoln; and he offered (at a Tryal at Bar in Ejectment) to read a Copy of a Leaſe out of the Leiger-Book of the Dean and Chapter of Lincoln, Copy out of a Leiger-Book no Evidence. but it was diſallowed per Curiam; for the Book it ſelf is but a Copy, and a Copy of a Copy is no Evidence, P. 27 Car. 2. B. R. Cotterel's Caſe. Leiger-Books and Paper-Books cannot be exemplified, but when offered in Evidence, muſt be produced themſelves, Hardr. 117, 118.

The Recital of a Leaſe, without ſhewing it,Recital of the Leaſe. ruled to be no Evidence upon a Demurrer, Ra. Entr. 318. 1 & 2 P. & M. Rot. 13. B. R. cited. Hardr. 119, 120.

A Copy of the Counterpart of a Leaſe,Counterpart of a Leaſe. the Leaſe being Loſt, allowed to be Evidence.

Tho' the Seals be broken off a Leaſe,Seals broken off. yet the Deed may be given in Evidence, 1 Mod. Rep. fol. 11. Q. if the Deed be pleadable.

A Copy of a Court-Roll may be given in Evidence,Copy of Court-Roll. where the Rolls are loſt or not loſt, 15 Car. 2. B. R. Snow and Cutler.

For if a Deed be pleaded,Difference between pleading a Deed, and giving it in Evidence. the Party muſt ſhew it in Court; but if it be given in Evidence, it is not neceſſary to ſhew it, if it can otherwiſe be proved to a Jury; for Witneſſes may prove the Contents of a Deed or Will, and ſo the Jury may find them, the Deed or Will not being found in haec verba, Stiles p. 34. Wright and Pindar.

A Deed made before the time of Memory,A Deed made before time of Memory. Ancient Deed. may be given in Evidence, tho' it cannot be pleaded. An ancient Deed is good Evidence without proving or Seal to it, P. 17 Car. 2. B. R. Wright and Sherrard.

A Will,Will. Probate. under which a Title of Land is made, muſt be ſhewed it ſelf; and the Probate is not ſufficient: Contra, if it were on a Circumſtance, or as Inducement, or that the Will remain in Chancery or other Court by Special Order of ſuch Court, 1 Keb. 117. Eden and Thalkill. 2 Rolls 678. So is Brett's A Probate of a Will by Witneſſes for Lands, is not Evidence at Common Law. And nothing can be given in Evidence againſt the Probate of a Will, but Forgery of it, or its being obtained by Surprize, and ſo it's concluſive, Raym. 405.

Error was brought of a Judgment in C. B. in Ireland in Ejectment: The Queſtion was upon a Bill of Exception, for that the Juſtices of the Bench there would not direct the Jury,Bill of Exceptions on the Probate of a Will. that the Probate of a Will before the Archbiſhop of Canterbury (the Teſtator dying in his Province) and alſo the Biſhop of Fernes, were ſufficient and concluſive Evidence, but only affirmed it was good Evidence, leaving it to the Jury. To which the other Party ſhews in Evidence Letters of Adminiſtration of the Goods under Seal of the Primate of Ireland. The Title was for a Leaſe for years in Ireland, claimed by the Leſſor of the Plaintiff under the ſaid Adminiſtrator: And Judgment was affirmed Per Curiam.

Where Bills, Anſwers, Depoſitions, &c. in Chancery, ſhall be good Evidence in this Action, or not.

In Ejectment the Defendant that made Title as a Purchaſor under a Deviſee,Bill preferred by the Heir againſt the Deviſee, ſetting forth the Will. and ſhewed only a Bill in Chancery preferred by the Heir, under whom the Leſſor of the Plaintiff claims againſt the Deviſee, whereby the Will was ſet forth, and confeſſed in the Anſwer. But per Curiam it is no Evidence, tho' a Poſſeſſion were proved accordingly in the Deviſee, and that this had been confeſſed by the Plaintiff in a former Tryal, 2 Keb. 35. Evans and Herbert. And yet in 1 Ventr. p. 66. A Bill in Chancery was ſaid to be given in Evidence againſt the Complainant.

On a Tryal in Ejectment, it was ſhewed for Evidence, That the Defendant P. was guilty of Simony for giving 100 l. per Annum to M. the Patron; and to prove this they ſhewed a Bond conditioned to pay 100 l. per Annum generally: And they ſay, That an Action of Debt was brought againſt P. and P. had preferred his Bill in Chancery to be relieved againſt this Bond, and by it diſcloſed that it was entred into for the Cauſe aforeſaid. But to that it was Anſwered, That P. was preſented by G. but it appeared that G. acted as a Servant to M. the Patron; and it was oppoſed,Where a Copy of a Bill ſhall be read as Evidence. That this Bill is no Evidence, becauſe it only contains Matter ſuggeſted perhaps by the Council or Sollicitor, without the Privity of the Party. But per Curiam the Copy of the Bill ſhall be read as Evidence, for it ſhall not be intended it was preferred without the Privity of the Party, and it being diſcloſed by the Party himſelf; otherwiſe they would not allow a Bill in Evidence, if there be not Anſwer and other Proceedings upon it, Siderf. p. 220. Dr. Crawley's Caſe.

But at a Tryal, the Plaintiff to prove his Bond, offered a Bill by the Defendant in Chancery, which Keeling Chief Juſtice held good Evidence, as in the Parſon of Amerſham's Caſe. Dr. Crawley, where a Bill by P. a Simoniac, to be relieved againſt his Bond, was admitted againſt himſelf; this being the Drift of the Bill, and not any particular Allegation: But the Court would not allow it.

Where an Anſwer in Chancery ſhall be good Evidence at a Tryal, or not.

In a Tryal at Bar between Mills and Bernardiſton, an Anſwer of L. M. ſurviving Truſtee, under whom the Plaintiff claimed, was offered for Evidence; but being after a Conveyance by him, the Court refuſed; but had it been before, it would be good againſt all claiming under him.Anſwer 'good Evidence againſt the Defendant himſelf, but not againſt other Parties. But Twiſden denied it, becauſe an Anſwer does not diſcover the whole Truth, and therefore ſhall be only admitted againſt the Party himſelf that made it, and not of one Defendant againſt another, much leſs againſt a Stranger, 2 Car. 2. B. R. And by Ley, Chamberlain and Dodderidge, a Defendant's Anſwer in an Engliſh Court, is a good Evidence to be given to a Jury againſt the Defendant himſelf, but it is no good Evidence againſt other Parties, Godb. Caſe 418. 2 Rolls Rep. 311. Berisford and Phillips. And if the Defendant's Anſwer be read to the Jury, it is not binding to the Jury, and it may be read to them by the Aſſent of the Parties, Godb. 326.

An Infant anſwered a Bill in Chancery by his Guardian;Infant's Anſwer by Guardian, not to be read in Evidence againſt the Infant. and it was a Queſtion in Leigh and Ward's Caſe in a Tryal at Bar in Ejectment, where the Infant was Party, whether that Anſwer could be read in Evidence againſt the Infant? This Queſtion was ſent from the King's Bench by Juſtice Eyres to the Common Pleas to know their Opinion; and per totam Curiam it could not be read; for there is no Reaſon that what the Guardian ſwears in his Anſwer, ſhould affect the Infant, 2 Ventr. 1 William and Mary.

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

Regularly the Depoſitions in Chancery or Exchequer,Depoſitions no Evidence, if the Party be alive. 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 Defendants, Godb. p. 193. Sir Francis Forteſcue,

Depoſitions taken in Chancery in perpetuam rei memoriam, Depoſitions no Evidence, without an Anſwer put in. 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,Depoſitions before Commiſſioners of Bankrupts, no Evidence at a Tryal. 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,Exemplificat' 〈◊〉 Depoſitio •• 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,Examination taken before Iſſue joyned, no Evidence, Hardr. 315. Brown's Caſe. and before Anſwer, and upon 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, becauſe it was taken before Iſſue joyned.

Divers Depoſitions in Chancery taken de bene eſſe, Depoſitions de bene eſſe. without Anſwer of the Defendant, were produced in Evidence; but the Court refuſed to permit the reading of ſuch Depoſitions 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 adverſe 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 Titile, but in his Anſwer ſets forth many things which made for the Title of the other Defendant: And between other Parties in B. R. theſe Depoſitions were prayed to be admitted 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 Juſtice ſaid, The Anſwer of a Defendant is not good Evidence for any purpoſe but againſt 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 Exchequer-Seal, Decree or Decretal-Order. which recites the Proceedings; and if it have Bill and Anſwer, allowed to be read, 1 Keb. 21. Trowel and Caſtle.

PEDIGREE.

In Ejectione Firme for the Barony of Cockermouth and the Lands, &c. the Leſſor ſhewed an Inquiſition in tempore R. 2. and finds an Intail to Henry Earl Piercy, and derives his Title under his Third Son, and offers in Evidence Dugdale's Baronage, but it was not allowed.

In Ejectment the Earl of Thanet makes his Title by a Gift in Tail by King Edward II. to Robert de Clifford, and the Heirs of his Body; and to prove him to be Heir of the Body of the ſaid Robert, he produceth a Chart of his Pedegree; which (deriving him from the ſaid Robert) ſhews him to be his Heir. And Sir William Dugdale and other Heralds being ſworn, they affirm that the Chart was deduced out of the Recodrs and and Ancient Books in the Heralds Office; but the Court would not allow this for Evidence, without ſhewing the Books and Record out of which they were deduced. And after an Ancient Book was ſhewed by them, which was allowed for Evidence; Sir Thomas Jones 224. Earl of Thanet's Caſe.

Office found, is no concluding Evidence, Sir Tho. Jones 224.

What Matter may or muſt be Pleaded, and what Matter may or muſt be given in Evidence.

It is a Rule in Law,Regula. in all ſuch Actions wherein one cannot Plead, there the Matter to be Pleaded ſhall be given in Evidence, and found per Verdict, but where the Party may Plead the ſame, is to be Pleaded by him. Therefore in Ejectione Firme, Treſpaſs, &c. in Action on the Stat. 5 R. 2. cap. 7. and other perſonal Actions,Collateral Warranty given in Evidence. a Collateral Warranty cannot be Pleaded in Bar; but he ſhall have the benefit of it, by giving the ſame in Evidence to a Jury, and the ſame is to be found by Verdict of the Jury; ſo is Seymor's Caſe, 10 Rep. 97. That Collateral Warranty may be given in Evidence, on Not guilty Pleaded in Ejectione Firme, becauſe in that and other perſonal Actions, that may not be Pleaded in Bar, 1 Bulſtr. 166, 167. Haywood and Smith. 10 Rep. 97. Seymor's Caſe, 1 Rep. Chudley's Caſe.

The Jury may find a Condition to Defeat a Freehold of Land,Condition to defeat a Freehold found by Jury. altho' it be not Pleaded; but of things in Grant, they muſt alſo find the Deed of the Condition, 21 Aſſ. 14.

The Jury may find Eſtoppel, which cannot be Pleaded,Eſtopple found by Jury. and Eſtoppels which bind the Intereſt of the Land, as the taing a Leaſe of a Mans own Land, by Deed indented, and the like, being ſpecially found by the Jury, The Court ought to Judge according to the Special Matter, 2 Rep. 4. Goddard's Caſe.

What Evidence the Jury ſhall have with them after Evidence given.

The Jury may not carry any other Evidence with them, but what is delivered to them by the Court, and ſhewn in Evidence. Upon Evidence to a Jury, to prove J. S. to be Heir to W. S. The Court will not accept the Pedigree drawn by an Herald at Arms for Evidence, nor will ſuffer the Jury to have it with them; its but only Information for Direction, p. 8. Jac. B. Plumton and Robinſon.

If an Exemplification comes out of Chancery, of Witniſſes there examined upon Oath who are Dead, the Jury ſhall have it with them; not ſo if ſome are Living and ſome are Dead, p. 10 Jac. B. Tomlinſon and Croke.

If after Evidence given to the Jury at the Bar, and they depart, the Solliciter of the Plaintiff come to them and delivers to them a Church Book, to take an Age which was given to them, in Evidence before at the Bar, and their ſhewed to them, and after they found for the Plaintiff; yet this ſhall not avoid the Verdict, becauſe it was no other than what was given to them in Evidence before, Vicars and Farthing's Caſe.

What ſhall be good Evidence to make Title in ſeveral Special Caſe.

A Verdict for the Leſſee is good Evidence for a Reverſion in Ejectment, Hardr. 472.

In Ejectment of a Rectory,As to a Rectory the taking of Tithes only no good Evidence of Ejement. The Evidence was of the taking of Tithes only, and not Entry into the Gleble, and the Plaintiff was Non-ſuit; ſo it was in Perry and VVheeler's Caſe, 1 Keb. 368. for a Rectory conſiſts of Glebe and Tithes, Latch. 62. Hems and Stroud.

A Parſon in the Ejectment of a Rectory,What things a Parſon in the Ejectment of a Rectory muſt prove. (if he will make out his Title) muſt prove Admiſſion, Inſtitution aud Induction; his reading and ſubſcribing the Articles, &c. and his Declaration in the Church of his full and free aſſent, and conſent to all the things contained in the Common Prayer; and this muſt be proved to be done within the time limited by the Statute, but he need not to ſhew a Right in him that preſented him, 2 Keb. 48. Siderf. 221. Dr. Crawley's Caſe.

In Evidence an Inſtitution without Preſentation,Inſtitution without preſentation proved no Evidence. or Copy of it was refuſed in Court; albeit, a Preſentation may be made by Parol, but proof muſt be made of it, ibid.

Admiſſion, Inſtitution and Induction upon the Preſentation of a Stranger, is a good matter to bar him, who had Right in an Ejectione Firme, and to put him to his Quare Impedit, Sid. 221. Dr. Crawly's Caſe.

In Ejectment. Evidence as to an Appropriation. The Defendant had a Leaſe of a Prebend made in tempore Hen. 8. and expired; and he now claimed a Leaſe from a nominal Prebendary thereof, founded in the Cathoedral Church of Lincoln. The Plaintiff claimed under Letters Patents from King James 1. and the Poſſeſſion was according to this Grant; and it was a Queſtion, if they ought to ſhew how it came to the Crown; but the Poſſeſſion having gone with it, The Court did preſume the Grant to King James to be loſt, and Judgment pro Quer. as in the Caſe of an Impropriation: Hales being Councel, It was inſiſted, the Impropriation was preſentative till Ed. 4th time, and could not be appropriated withouth the King's Licence, quod Curia conceſſit, and he could not produce the Licence; yet, becauſe it was enjoyed ever ſince Edward the 4th time as Appropriate, the Court did intend a Licence, and that the Patent was loſt before the Inrolment, and a Verdict accordingly, p. 27. Car. 2. Coterel's Caſe.

In Ejectment for a ſeveral Fiſhing. On Not guilty,Where conſtant enjoyment good Evidence. if the Plaintiff derive a Title as high as the Abbies, he need not ſhew any Patent, or Derivation from the Crown; but the conſtant enjoyment is ſufficient, unleſs one be ſued by the Crown, 14 Car. 2. B. R. Sir Chr. Guiſe and Adams.

In Evidence to a Jury at Bar, The Defendant made Title by the Feoffment of the Lord M. to his Son in Law, the Earl of C. on which there was no Livery nor Inrolment, but both lived together; but the Father was reputed Owner, and paid the Rates, and a year after releaſed and confirmed to his Son and his Heirs; and this Title was oppoſed, becauſe there was never any inception of an Eſtate at Will, no entry being proved by the Son after the Deeds made.What entry ſhall be intended and need not be proved But per Cur. The Feoffment with future Conveyances is ſufficient, both living together, the entry ſhall be intended, and need not be ſpecially proved; whereupon the Plaintiff was Non-ſuited, M. 20. Car. 2. B. R. Dunaſton and Sir Jerom Whichcoat.

In Berry and Wheeler's Caſe in Ejectment,Extent of a Rectory on Elegit. The Council excepted to an Extent, under which the Plaintiff claimed, becauſe after Execution of Fieri facias for part, Elegit was for the whole, without mentioning any thing levied by the former Elegit which recited the Fieri facias, but was returned nihil, ſed non allocatur. 2. It was further objected, That it appears, that more than a Moiety is extended: For its ſaid, That the Defendant was ſeized of a Rectory, of the value of 100 l. and other Lands appurtenant, que quidem Rectoria ſine terris Glebalibus is the Moiety. But per Cur. it may be underſtood of the Church-yard, &c. diſtinct from other Lands pertaining, and as long as the Extent continues, it cannot thus be denied but there is Glebe, M. 14. Car. 2. B. R. Berry and Wheeler.

In Ejectment,Defendant not to give in Evidence, a former Mortgage made by himſelf. The Defendant ſhall not give in Evidence, a former Mortgage or Conveyance made by himſelf, and therefore in ſuch Caſes, its left for him that hath the former Mortgage, to get himſelf made Defendant before the Cauſe comes to Tryal.

If an ancient Deed of Feoffment be ſhewed,Long Poſſeſſion. but not Livery upon it, if Poſſeſſion have gone along with the Deed; this is good Evidence to a Jury to find Livery, 2 Rolls Rep. 132.

He which affirms the matter in Iſſue, ought firſt to make proof to the Jury; and when the Priories were ſuppreſſed, a Commiſſion iſſued,Whether par • el of a Prio •• y Certificate. and a Certificate upon this, upon all the Poſſeſſions, and their values which belonged to the Priories; and therefore it is good Evidence in Iſſue, whether Land was parcel of the Priory or not, that no mention of it is in the Certificate, Lit. Rep. 36.

Variance of the Evidence from the Declararation, or what Evidence ſhall be ſaid to maintain the Iſſue.

In Ejectione Firme, if the Plaintiff Declares upon a Leaſe made by two,Leaſe by two, and one was Leſſor for life remainder to the other. and gives in Evidence, that one of the Leſſors was Leſſee for Life, the Remainder to the other; this is a material variance from the Declaration, in as much as this is only the Leaſe of the Tenant for Life, 2 Rolls Abr. 719. England and Long.

So if a Man Declare a Leaſe by two,Leaſe by two, where one had nothing in the Land. where one had nothing in the Land, and ſo void as to him; yet this is a material variance id. ibid. So if a Man Declare of a Leaſe made by Baron and Feme, and gives in Evidence a Leaſe made by the Husband only, this is a material variance.

So it is,By Joynt Leaſe, and they are Tenant in Common. if a Man Declare of a Joynt Leaſe made by two, and it appeareth upon the Evidence, That the two Leſſors were Tenants in Common, and ſo ſeveral Leaſes, this is a material variance. But otherwiſe it is, if it appear upon the Evidence, That the two Leſſors were Copartners, for this is one Leaſe being made by them,Copartners. Cr. Jac. 166. Mantler's Caſe.

If the Declaration be of a Leaſe of three Acres,The Acres and Leaſe of a Moiety. a Leaſe of a Moiety in Evidence, will not maintain the Declaration, for it is not the ſame Leaſe, but in Seabright's Caſe, B. R. 40 El. and Cooper and Franckling's Caſe, 14 Jac. Ejectione Firme of 20 Acres, the Jury found him guilty of the Moiety, and Not guilty of the reſidue, the Plaintiff ſhall have Judgment againſt Plowden 224. Brake and Right's Caſe.

The Declaration in Ejectment was of a fourth part, of a fifth part, in five parts to be divided; and the Title of the Plaintiff upon the Evidence was but of a third part, of a fourth part, of a fifth part in five parts to be divided, which is but a third part of that which is demanded in the Declaration: And it was ſaid, The Plaintiff cannot have a Verdict,Verdict to be taken according to the Title. becauſe the Verdict in ſuch a Caſe, ought to agree with the Declaration; but per Cur. the Verdict may be taken according to the Title, and ſo it was. Qu. how the habere fac', Poſſeſſion in ſuch caſe ſhall be executed, Sid. p. 229. Ablett and Skinner.

The Plaintiff Declares of a Leaſe made the 14 of January, Variance as to time. 30 El. Hab. from the Feaſt of Chriſtmaſs then laſt paſt for three years, and upon the Evidence the Plaintiff ſhewed a Leaſe bearing date the 13 of January eodem ann. And it was found by Witneſſes, that the Leaſe was Sealed and Delivered upon the Land the 13th day. Per Cur. Notwithſtanding this variance, the Evidence is good enough to maintain this Declaration, for if a Leaſe was Sealed and Delivered the 13 day, it was then a Leaſe of the 14 4 Leon. p. 14. Force and Foſter.

The Plaintiff declared in Ejectment of 100 Acres of Land,Evidence of fewer Acres then delcared. and ſhewed his Leaſe in Evidence of 40 Acres. And it was urged, That he failed of his Leaſe, for there was no ſuch Leaſe, as that whereof he did Count. But per Cur. it is good, for ſo much as was contained in his Leaſe, and for the Reſidue the Jury may find the Defendant Not guilty, Cr. Eliz. p. 13. Guy and Rand, and yet it is held, 2 Rolls Abr. 72. Brown and Ells.

If the Plaintiff Declare in Ejectment upon a Leaſe for years of three Acres, and in Evidence he ſhews but a Leaſe of a Moiety, this is a material variance, for it is not the ſame Leaſe.Ejectment of Meadow and Paſture, and the Evidence is de Herbegio and Pannagio. Ejectione Firme of ſo many Acres of Meadow, and ſo many Acres of Paſture. Upon Not guilty, the Jury find a Demiſe de Herbagio and Pannagio of ſo many Acres; the Queſtion was in Wheeler and Toulſon's Caſe, Hard. 330. If this Evidence ſhall maintain the Iſſue, The Court inclined it did not. Ejectment doth lie of a Leaſe of Herbage, and then by the ſame Reaſon, the Plaintiff ought to Declare accordingly, and Herbage doth not include all the profit of the Soil, but part of it.

The Declaration was of a Joynt Leaſe made by two,Joynt Leaſe, by Tenants in Common. and on Evidence it appears they were Tenants in Common: By three Juſtices againſt one it is good, Cr. Jac. 166. Mantle's Caſe, 83.

Ejectment was of Lands in Oxenhope, and the Witneſſes upon examination did ſwear there were two Oxenhopes, upper, and nither, without Addition; and upon this the Plaintiff Nonſuited at York Aſſizes.

If a Man Declare of a Leaſe made by Baron and Feme, and gives in Evidence a Leaſe made by the Baron only; this is a material variance.

Note, The day of the Filing of the Declaration in the Ejectment, may be given in Evidence, where the Demiſe is laid the ſame Term, Vid. Siderf. p. 432. Perdyer's Caſe.

Of Demurrer to the Evidence.

It was held by all the Court upon Evidence to a Jury,Demurrer on Evidence. That if the Plaintiff in Ejectione Firme, or other Action, gives in Evidence any matter in Writing or Record, or a Sentence in the Spiritual Court, (as it was in this Caſe) and the Defendant offers to Demur there upon, The Plaintiff ought to joyn in Demurrer or wave the Evidence, becauſe the Defendant ſhall not be compelled to put a matter of difficulty to the Laygents, and becauſe there cannot be any variance of a matter in Writing; but if either Party offer to Demur upon any Evidence given by Witneſs, the other unleſs he pleaſeth ſhall not be compelled to joyn, becauſe the Credit of the Teſtimony is to be examined by a Jury, and the Evidence is uncertain, and may be enforced more or leſs; but both Parties may agree to joyn in Demurrer upon ſuch Evidence, and if the Plaintiff produce Teſtimonies to prove any matter in fact, upon which a Queſtion ariſeth, if the Defendant admit their Teſtimones to be true he may Demur; but in the Caſe of the King, the other Party may not Demur upon Evidence ſhewn in Writing, or Record for the King, unleſs the King's Council will thereunto aſſent:In the King's Caſe. But the Court in ſuch Caſe, ſhall charge the Jury to find ſuch ſpecial matter; but this is by Prerogative, who may waive the Demurrer, or take Iſſue at his Pleaſure, Cro. Eliz. 751. Midlet and Baker, 5 Rept. 104. Baker's Caſe.

And in 1 Inst. p. 72. If the Plaintiff in Evidence ſhew any matter of Record or Deeds, or Writings, or any Sentence in the Eccleſiaſtical Court, or other matter of Evidence by Teſtimonies of Witneſſes, or otherwiſe, whereupon doubt in Law ariſeth, and the Defendant offer to Demur in Law thereupon, the Plaintiff cannot refuſe to joyn in Demurrer, no more than in Demurrer on a Count, Replicat. &c. and ſo è Converſo, may the Plaintiff Demur in Law on the Evidence of the Defendant; but the King's Council ſhall not be inforced to joyn in Demurrer. A Demurrer to Evidence never denies the truth of the fact, but confeſeth the fact, and denies the Law to be with the Party that ſhews the fact, Plowd. Newis and Scholaſtica's Caſe.

If a Demurrer be upon the Evidence, the Evidence ought to entred verbatim, Keb. 77.

Exemplification of a Verdict.

A Verdict againſt one whom either the Plaintiff, or Defendant claims, may be given in Evidence againſt the Party ſo claiming; Contra, if neither claim under it, Mich. 1656. B. R. Duke and Ventres.

If a Verdict paſs for two Defendants, altho' by default of ones not putting in Bail, They may not have Judgment, yet they may exemplifie their Verdict, to give this in Evidence to another Jury, 2 Rolls Rep. 46. Dennis and Bremblecot.

In Ejectment brought by a Reverſioner, or Debt upon the Statute of Tithes, Ed • 6. brought by a Proprietor of Tithes, after a Verdict at Law; the Leſſee or the preſent Proprietor, the Reverſioner of the Lands or Tithes, ſhall hive advantage of the Verdict, and gave it in Evidence: And the Reaſons are, becauſe they cannot be immediate Parties to the Action or Suit, for that muſt be proſecuted by the Leſſee or preſent Tenant, and they may give in Evidence, as well as the Plaintiff himſelf, Hard. 2. Rep. 472.

A General Verdict.

IF at a Tryal at Bar there be matter in Law, and the Judges agreeto it, and ſo the Jury do not find it Specially, but give a General Verdict, The Judgment ſhall be according to the Verdict, and cannot be ſtaied, 1 Bulſtr. 118. Platt and Sleep.

Ejectment of ſeven Meſſuages ſive Tenementis, is ill after a General Verdict; and its ill on Demurrer; but this might have been helped by taking Verdict of either. So it is where Ejectment is de Meſſuagio & Tenemento, its ill after a General Verdict, 2 Keb. 80. 82. Burbury and Yeoman; in this Caſe the Verdict was general for the Plaintiff, for the Meſſuages, and non culp. for the Tenements it ſeems it had been good. But Hales Chief Baron, refuſed to allow of ſuch finding in the Home Circuit: And it was ſaid by the Court as this Caſe is, The Plaintiff may not Aid himſelf per releaſing of part, as perhaps he might, had there been Lands alſo in the Declaration, 295 Meſme Caſe.

But firſt,Council to ſubſcribe the Points in Queſtion. Special Verdict. I ſhall ſet down two or three things obſervable, as Rules or Directions of the Court, in reference to Special Verdicts.

It was made a Rule of Court, That in finding of Special Verdicts where the Points are ſingle, and not complicated, and no Special Concluſions; the Council if required, ſhall ſubſcribe the Points in Queſtion, and agree to amend the omiſſions or miſtakes in the mean Conveyances according to the truth, to bring the Points in Queſtion to Judgment. It was likewiſe Order'd in Roll's time,Of finding Deeds in haec •• erba. That the unneceſſary finding of Deeds, in haec verba upon Special Verdicts, where the Queſtion reſts not upon them, but are only derivative of Title, ſhall be ſpared and found briefly according to the ſubſtance they bear in reference to the Deed, be it Feoffment, Leaſe, Grant, &c.

Note, Attachment againſt the Defendant, becauſe he would not bring in his Evidences. In 2 Rolls Rep. 331. An Attachment was awarded againſt the Defendants, becauſe they would not bring in their Evidence, for to have a Special Verdict in Ejectione Firme; and this by the courſe of the Court, becauſe there is no other remedy.

As to the Rules of Special Verdict.

Eſtoppels,Eſtoppels found by the Jury. which bind the Intereſt of the Intereſt of the Land, as the taking of a Mans own Land by Deed indented, and the like being Specially found by the Jury, The Court ought to Judge according to the Special matter; for the Eſtoppels regularly muſt be pleeded, and relied upon by apt Concluſion, and the Jury is Sworn ad veritatem dicendam; yet when they find veritatem factis, they perſue well their Oath, and the Court ought to judge according to Law. So may the Jury find a Warranty, being given in Evidence, tho' it be not pleaded, 10 Rep. 97. vide ſupra tit. Evidence. And if the Jury find the truth, the Court ſhall adjudge it to be a void Leaſe, vid. Cr. Eliz. 140. Sutton and Rawlin's Caſe.

In Ejectment, Priority of Poſſeſſion where a good Title. if it appear by the Record of a Special Verdict, that the Plaintiff had Priority of Poſſeſſion, and no Title be proved for the Defendant, the Plaintiff ſhall have Judgment, as in Coryton's Caſe. J. Hiblin was ſeiſed in Fee of the Lands in Queſtion, and by his laſt Will deviſeth unto A. H. Leſſor of the Plaintiff, if my Son T. H. happen to have no Iſſue-male after the Death of my Wife; and if he have Iſſue-male, then 5 l. to be paid to A. H. The Deviſor died ſeiſed, leaving Iſſue, Thomas, who had R. Iſſue-male. Ann the Wife of the Deviſor ſurvives him, and after dies; and they find that A. and Eliz. were Siſters and Coheirs of the ſaid R. the Iſſue-male, who died without Iſſue. And they found the Entry of the Leſſor of the Plaintiff, and the Leaſe to the Plaintiff prout in the Declaration; and that the Defendant, as Guardian to A. and Eliz. ouſted him. The Points in Law in this caſe were not argued, becauſe it appears by the Record, That the Leſſor had Priority of Poſſeſſion, and there is not any Title found for the Defendant. For tho it be found that A. and E. were Coheirs to the Iſſue-male, that is to no purpoſe; becauſe it was not found that they were Heirs of the Deviſor; and the Eſtate-Tail (admitting it were ſo) appears to be ſpent by the Death of Thomas Hiblin without Heir-male, and ſo they had no Title; and then the Priority of Poſſeſſion only gives a good Title to the Leſſor of the Plaintiff againſt the Defendant and all the World beſides, but only againſt the Heir of the Deviſor, 2 Sanders 112. Allen and Rivington.

In Bateman and Allen's Caſe there was Special Verdict in Ejectment, ſed utrum the Entry of the Defendant upon the matter be lawful or not, they pray Advice. And if the Entry were lawful, they find for the Defendant, if not, &c. Now foraſmuch as in all the Verdict it is not found that the Defendant had the primer Poſſeſſion, nor that he entred in the Right, or by the Command of any who had Title; but it is found he entred upon the Poſſeſſion of the Plaintiff without any Title, his Entry is not lawful; and the Plaintiff had good Cauſe of Action againſt him, wherefore the Plaintiff ſhall recover, and ſo held all the Court; wherefore they would not hear any Argument as to matter of Law. But if the Concluſion of the Verdict had been ſi, &c. whether the Entry of Hill and his Wife were lawful or not, then the Judgment ſhould have been upon Matter in Law; for that it ſhould be intended that the Defendant had Title, i • the Leſſor of the Plaintiff had no Title 〈◊〉 and that the Plaintiff had not Cauſe of Action, but now not, Craw and Ramſey. Vi • infra. Cro. El. 437. Bateman and Allen. Pl • Nervis & Scholaſtica.

Special Verdict finds W. B. ſeiſed, and deviſed the Reverſion of all Meſſuages (except in D.) to the Heirs of the Deviſor, an • that Tho. B. was Brother and Heir, and en • tred and leaſed to the Plaintiff till the D •• fendant ejected him, and have found no T •• tle for the Defendant, now being there is 〈◊〉 Title found for the Defendant, nor of what Land this Ejectment was (viz.) That it was not of that deviſed before the Verdict, is imperfect, and otherwiſe the Plaintiff muſt have had Judgment upon the prior Poſſeſſion.

In Craw and Ramſey's Caſe, 2 Ventr. 3. the Jury find that Patrick who was the Iſſue born in England, entred, and was ſeiſed; but that he, Anno Dom. 1651. did bargain and ſell, virtute cujus the Bargainees were ſeiſed prout Lex postulat, and then bargained and ſold it 1662. Wild and Archer were of Opinion, That the Plaintiff could not have Judgment upon that Verdict, for that they their Bargainees ſeiſed prout Lex poſtulat, but they find the Defendant entred, and ſo the primer Poſſeſſion is in him, which is a good Title againſt the Plaintiff, for whom none is found, it being not found that Patrick entred. But Tirrel and Vaughan ſaid, It ſhall be intended that Patrick entred; for a Verdict that leaves all the Matter at large to the Judgment of the Court, will be taken ſometimes by Intendment,Intendment. as well as where the Jury conclude upon a Special Point, Car. Jac. 64. The Jury find an Incumbent reſigned, it ſhall be intended the Reſignation was accepted. So Hob. 262. And where they find the Bargainees ſeiſed,Prout Lex poſtulat. prout Lex poſtulat, that doth not leave it doubtful, whether ſeiſed or not ſeiſed; but whether by Right or by Wrong,If the Defendant hath primer Poſſeſſion firſt, he ſhall not have Judgment if no other Title be found for him for Seiſm muſt betaken as found expreſly, neither do they find any other in Poſſeſſion; yet however if the Defendant had primer Poſſeſſion, he ſhall not have Judgment, if no other Title be found for him, as in Cr. Car. 57. Hern and Allen The Husband makes a Feoffment in Fee with Warranty, and takes back an Eſtate to him and his Wife for their Lives, &c. The Husband dies, the Wife enters; the Queſtion was, if the Entry of the Wife ſhall remit to the Eſtate-Tail; but the Jury find the Huſband was ſeifed prout Lex poſtulat, but no Entry by him; and no Remitter can be wrought without an Entry, 2 Bulstr. 31, 32.

Ejectione Firme of the Rectory of M. of the Leaſe of Henry Fowler, and that the Leſſor was preſented by the Lord Windſor upon Deprivation of A. L. Upon Evidence it appeared, That the Advowſon was the Inheritance of the Lord Windſor, who granted the next Avoidance thereof to Dr. G. The Church became void: Fowler, Father of Henry, by Simony procures Henry to be preſented, who was inſtituted and inducted; and ſo the King preſented A. L. who was afterwards deprived: But ten days before Richard Fowler procures a Grant of the next Avoidance to J. S. and procures J. S. to preſent Henry Fowler. Per Cur' his Preſentation is meerly void, he being diſabled ever after to take the ſame place; and every one who is in Poſſeſſion, hath good Title againſt him and his Leſſee, ſo as the Plaintiff cannot maintain this Action, Cro. Jac. 533. Booth and Rich. Potter.

If the Plaintif hath not Title according to his Declaration, he cannot recover, whether the Defendant hath Title or not, and wheiher he be a Diſſeiſſor or not; as where an Infant makes a Leaſe at Will, who enters and ouſts the Plaintiff, and the Plaintiff brings Ejectment. Vid. 1 Leon. 211. Cotton's Caſe.

Ejectione Firme was brought upon a Leaſe made by Roan of the Rectory of, &c. Special Verdict found Glover put in a Caveat to the Biſhop in the Life of the Incumbent; the Incumbent dies, and afterwards by the Preſentation of Mantle, Morgan was inſtituted. And after Wingfeild preſents Glover, who was inſtituted and inducted; and after the King preſents his Clerk Roan, who was inducted; and after Morgan was inducted, and after Roan enters, and lets to the Plaintiff, who upon the Entry of the Defendant, brought his Action. Now Morgan was inſtituted, and after Glover was inducted, which was void; but by that he had the Poſſeſſion, and afterwards Roan the Preſentee of the King is inducted; and after Morgan is inducted; and after Roan enters, and Glover enters upon him: The Queſtion was, Who had better Poſſeſſion Roan or Glover? Per tot' Cur' Roan had the better Poſſeſſion, if it be admitted that the King had not any Title to preſent; for tho' Glover had the firſt Poſſeſſion, yet his Poſſeſſion was defeated by the Induction of Morgan, who had the true Right; and then when Roan enters upon him, he had the firſt Poſſeſſion, and better Right againſt any other praeter Morgan; and by Conſequence the Action will lie by the Leſſee of Roan againſt Glover, Moor 191. Hi • thorn and Glover.

On Special Verdict it was found, that it was Copyhold, parcel of the Manor of S. demiſable for three Lives, and that by the Cuſtom of the Manor the firſt Name in the Copy ſhould enjoy it during his Life, & ſic ſucceſſive; and that the Lord A. granted it by Copy to Alice W. R. W. and J. W. her Sons for three Lives; that R. W. made Waſte in cutting down Timber Trees. Lord A. ſeiſed it, and granted it by Copy to the Leſſor of the Plaintiff for his Life, and after licenſed him to let Tenements infra ſcript' in quibus, &c. for five years, if J. the Leſſor of the Plaintiff ſo long lived; that he let to the Plaintiff for three years, who entred, and the Defendant ouſted him. Et ſi ſuper totam, &c. per Cur', inaſmuch as it is a good Leaſe made to the Plaintiff, and no Title at all appears for the Defendant, but that he entred upon the Plaintiff's Poſſeſſion, and not by Command of any who had Right, altho' there were ſome matter between the Plaintiff and the firſt Copyholder, yet Judgment ought to be pro Quer', Cro. Jac. 436. Worledge and Benbury.

So in Powel and Goodard's Caſe, Tr. 21 Car. 2. B. R. in Ejectment, Special Verdict finds W. G. ſeiſed in Fee, and deviſed that P. and J. G. ſhould be Truſtees, and take the Profits till the full Age of H. G. whom he makes his Heir. W. G. doth authoriſe his Feoffees to ſell ſo much of his Lands for payment of Debts and Funeral Charges as in their diſcretions ſhall ſeem meet. The Feoffees for 80 l. Leaſe for 99 years to begin after the Death of R. G. and his Wife, to three, one whereof is Leſſor of the Plaintiff; it was found at the time of the Sale, that all the Debts were paid. Per Cur', the Fee being given away from the Heir of the Deviſor, Priority of Title is a ſufficient poſſeſſion,Priority a ſufficient Title. unleſs ſome Title be found for the Defendant; and primer Poſſeſſion is good where neither Party hath Title; and in this Caſe the Leaſe was adjudged void, the Truſtees not being enabled to ſell farther than to ſatisfie Debts.

In Wallis's Caſe,Where primer Poſſeſſion makes a Diſſeiſin. Stiles Rep. 291. Special Verdict was on a Copyhold-cuſtom, the primer Poſſeſſion will make a Diſſeiſin, if the Cuſtom be not well found; it was not found in that Caſe that the Land was demiſable according to the Will of the Lord, and ſo it may be Free-Land, and the Cuſtom did not extend to it; nor is it found that the Parties to whom the Lettor of Attorney— was made to ſurrender, were cuſtomary Tenants, and then the primer Poſſeſſion by the Defendant will make a Diſſeiſin, and Judgment pro Quer'.

In Ejectment prior Poſſeſſion is a good Title againſt the King's Preſentation,In Ejectment prior Poſſeſſion a good Title againſt the King's Preſentation, not ſo in a Quare Impedit. but not ſo in a Quare Impedit; for there the Incumbent ought (altho' Defendant) to make a Title againſt the King's Preſentation without Title, as is the Book 7 H. 4. 31. but if the Incumbent be in by Entry of his own Head, without Preſentation, it is not ſufficient in either, 1 Keb. 503. Brown and Spencer.

3. Si conſtare poterit that it is the ſame Land, it is good. The Special Verdict is good, ſi conſtare poterit, that it is the ſame place and the ſame Land in the Declaration mentioned, although it be not found expreſly; and although the Jury find not that it is the ſame Land in the Declaration mentioned, yet if they find the Entry and Ejectment according to the Declaration, it is ſufficient; and therefore the Miſtake of a Letter, or Addition of a Word ſhall not hurt the Verdict, ſi constare poterit, &c. Siderf. p. 27. Hoare and Dix.

4.The Special Concluſion of a Special Verdict, ſhall aid the Imperfections of it. In many Caſes the ſpecial Concluſion of a Special Verdict ſhall aid the Imperfections of it. If the Jury find a Special Verdict, and refer the Law upon that ſpecial Matter to the Court, although they do not find any Title for the Defendant, which is a collateral thing to the Point which they refer to the Court, yet the Verdict is good enough; for all other things ſhall be intended, except this which is referred to the Court. As in Ejectment, if the Plaintiff declare upon a Leaſe made by A. and the Jury find a Special Verdict and matter in Law upon a Power of Revocation of Uſes by an Indenture and Limitation of new Uſes, and then a Leaſe for years made to the Plaintiff by the Leſſor in the Declaration, and another in which there is a perfect Variance; but they conclude the Verdict, and refer to the Court, whether a Grant of a new Eſtate found in the Verdict, be a Revocation of the firſt Indenture, or not. The ſpecial Concluſion ſhall aid the Verdict, ſo that the Court cannot take notice of the variance between the Leaſe in the Declaration and the Verdict, becauſe the doubt touching, the Revocation is only referred to the Court. And although they refer to the Court, whether this be a Revocation of the firſt Indenture, and not of the former Uſes or Limitation of new Uſes, as it ought to be, yet in a Verdict this is good; for their intention appears.Intent. But where the Jury find ſpecially, and furthermore conclude againſt Law,Where the Verdict is good, and the Concluſion ill. Diverſity between a geneneral Concluſion and a ſpecial Concluſion. the Verdict is good, and the Concluſion is ill; and the Court will give Judgment upon the ſpecial Matter without having regard to the Concluſion of the Jury, 5. Rep. 97. Litt. Rep. 135. 2 Keb. 362, 412. 11 Rep. 10. Moor 105, 269. So note this Diverſity between a ſpecial Concluſion of the Jury, and Reference to the Court, and a general Concluſion and Reference to the Court.A Special Verdict may make the Declaration good. A preciſe Verdict may make the Declaration good, which otherwiſe would be ill, as the Declaration is of Lands in Sutton Coefeild; and the Verdict finds the Lands in Sutton Colefeild, and the Deed is of Lands in parva Sutton infra Dominium de Sutton Colefeild; ſo neither the Verdict nor Deed agree with the Declaration for the Vill where the Lands lie; therefore no Judgment ought to be given. But per Cur' the Verdict finding Seiſin de infra ſcript' meſſuag', that is quaſi an expreſs Averment; and finding that Sutton Coefoild and Sutton Colefeild & parva Sutton infra Dominium Sutton Colefeild, are all one, and that they be all in one Pariſh, and this being in a Verdict when the Jury found Quod dedit tenementa infra ſcript' by Name in the Deed, ſhall be intended all one. So its aided by the finding of the Jury, who find expreſly that the Biſhop, dedit Tenementa infra Script. Cr. Jac. 175. Ward and Walthow, Yelv. p. 101. Meſme Caſe.

5. The Judges are not bound by the concluſion of the Jury, as in Ejectment on a void the Jury find Leaſe,Leaſe. that if the Entry of the Daughter was not congeable, the Defendant is Guilty: Now the Judges are not bound by the concluſion of the Jury, but may Judge according to Law, as 10 Ed. 4. f. 70. Treſpaſs was brought againſt the Lord for Diſtraining. The Jury found for the Plaintiff. But becauſe the Statute of Marlbudge, is non ideo puniatur Dominus, &c. The Court ſhall adjudge for the Defendant. So is the Rule in Plowd. Com. 114. b. when the Verdict finds the fact, but concludes upon it contrary to Law, the Court ſhall reject the concluſion, as in Amy Townſend's Caſe. The Jury find preciſely that the Wife was remitted, which was contrary to Law, for their Office is to judge of matters of Fact, and not what the Law is. So, if the Jury collect the contents of a Deed, and alſo find the Deed in haec verba, The Court is not to Judge upon their Collection, but upno the Deed it ſelf; Moor p. 105. Lane and Cooper.

And yet the Court is ſometimes bound by the concluſion of the Jury; as in Ejectione Firme of one Acre, The Jury find the Defendant Guilty of one Moiety, and a Special Verdict for the reſidue, and conclude if the Court ſhall find him Guilty of all, then &c. The Plaintiff cannot have Judgment upon this for a Moiety, if the Court ſhall not adjudge him Guilty of the whole for the Special concluſion cited, 1 Rolls Rep. 429.

1.Verdict to be taken according to Intent. Special Verdict ſhall be taken according to Intent, and the Court muſt make no more doubts than the Jury does; the finding matter of Fact being only the Jurors Office, as 5 Rep. Goodales's Caſe, The doubt was, whether the payment of 100 l. with agreement to have ſome part of it back again, were ſufficient upon a Condition to defeat the Eſtate of a Stranger: The Court regarded not, that there was no Title found for the Party that made the Entry, whereupon the Action was brought. Ejectione Firme was brought by G. againſt W. upon Not guilty, the Jury concluded their doubt upon performance of a Condition,When the Verdict concludes ſpecially on one point, the Court ſhall doubt of no more than the Jury doubts, ſecurs where it concludes it the General. General concluſion depends upon all the Points of the Verdict. by Payment of Money by Sir J. P. to one W. but yet, in making up their Verdict, they had given the Poſſeſſion to the Plaintiff by Leaſe, and laid the Entry upon him by W. without any Title under Sir J. P. but that was included and ſo not regarded, Hen. 55. 262.

But if the Jury conclude upon the General, whether the Defendants Entry were lawful or not, which is all one, as if they had referr'd to the Court whether he be Guilty or not; this depends upon all the Points of the Verdict indifferently, that may prove him Guilty or Not guilty, Hob. 262. So is Castle and Hobb's Caſe, Cro. Jac. 22. The Verdict was on the paſſing by Letters Patents, and the Jury found, that if they were good Letters Patents, then for the Defendant, otherwiſe they found for the Plaintiff, and they find no Title for the Plaintiff: But it is intended, there is a ſufficient Title found for the Plaintiff, unleſs by this Patent it be defeated and avoided; ſo that if the Jury be ſatisfied, that the Plaintiff hath any good Right by any other manner of Title, the Court ought not to doubt thereof.

How, and in what Caſes Special Verdicts ſhall be taken by Intent or Preſumption, and what things ſhall be ſupplied.

I Deviſe all thoſe my Lands in Shelford called Somerby, to W. in Tail remainder over, and it is not found per Verdict, that thoſe Lands in the Action are called Somersby. But per Cur. for as much as the contrary is not found, it ſhall be intended, that he had not other Lands in Shalford, than thoſe which were called Somersby, tho' that name be not at firſt given them; for it was, I Deviſe all my Lands in Shalford to his Wife for Life, and the remainder in Tail prout ante, Co. Eliz. 828. Peck and Channel.

It ſhall be intended, that the Reverſion continues in the Party, as if a Special Verdict find that A. was poſſeſt for years of Land, and that the Reverſion in Fee was in B. Reverſion ſhall be intended to continue. and that A. Deviſe the Term to C. after the Death of M. whom he makes his Executor, and dies, and M. enter, and during his Life C. after releaſeth his poſſibility to B. and it is not found, that the Reverſion continued in B. at the time of the Releaſe; yet it ſhall be intended to continue in him in a Verdict, it being found to be once in him by the ſame Verdict before, p. 13 Car. 1. B. R. Johnſon and Trumper.

A Life ſhall be intended to be in being tho' not found,Where a Life ſhall be intended to be in being. as was Fretzvil and Mollineux's Caſe. If the Jury find the Title of the Plaintiff to be under one, who was Leſſee for Life, and they find the Eſtate for Life, but do not find the Tenant for Life is alive; The Life ſhall be intended and ſupplied, the concluſion and reference to the Court being upon other matter. Special Vedict in Ejectment found, that J. J. was deprived by the high Commiſſioners of a Benefice, and it is found in this manner, That ſuch perſons authorizati virtue Literar' Patent' Eliz. Reg. Jury find virtute Literar' do not find they were under Seal. and it is not found, that the Letters Patents were under the great Seal; yet this is good, and ſhall be intended in a Verdict, Tr. 13 Car. 1. B. R. Allen and Naſh.

In Ejectment, The Verdict was on a Proviſo of Revocation of uſes, That it ſhould be lawful for the Covenantor, being in perfect health and memory, under his Hand and Seal, and by him delivered in the preſence of three credible Witneſſes, &c. It was agreed, That tho' the Verdict do not find the Covenantor was in perfect health and memory; yet that was well enough, for it ſhall be preſumed, except the contrary were ſhewed,What ſhall be preſumed unleſs the contrary be ſhewed. and ſo for the preſence of credible and ſufficient Perſons. Otherwiſe, if it were in the preſence of ſufficient ſubſidy Men, Hob. 312. Kibbet and Lee.

If the Jury find that J. S. was ſeiſed in Fee, and deviſed the Land to J. D. altho' they do not find the Land was held in Socage, yet that is good; for this ſhall be intended, it being a Collateral thing, and it being the moſt common Tenure.

If the Jury find that J. S. was ſeiſed in Fee,Deviſe. and made his Will in haec verba, and that he afterwards died; altho' they do not find he died ſeiſed, yet it ſhall be intended, he died ſeiſed, and ſo good. But

If the Jury find the Words of the Will, and yet do not find the will, the Verdict is not good

And if the Jury find a Bargain and Sale, and a Fine,Bargain and Sale. and do not mention Inrolment or Proclamations, it ſhall not be intended, Hob. 262.

In Ejectione Firme, the Verdict finds that E. D. the Leſſor, and Coniſor was ſeiſed in Tail of the Manor of B. at the time of the Recognizance, and that this Manor was delivered in Extent; but he doth not ſay that the Lands in the Declaration were parcel of the ſaid Manor, and ſo its not found,Extent. that this Land was delivered in Extent, and then the Defendant had no Title. Per Cur. its not material, it ſhall be intended in a Special Verdict; otherwiſe there is no Cauſe of a Special Verdict, Cr. Car. 458. Cleve and Vere.

It was objected in Corbet and Stones's Caſe, p. 1653. B. C. The Jury find that after a Fine levied, and before the Ejectment, the intereſt of M. C. F. B. and K. B. of the Lands in Queſtion, came to the Leſſor of the Plaintiff,That the Intereſt of the Lands came to the Leſſor, but ſhews not how. but ſhews not how. But per Cur. it is good enough, for when the Jury finds the intereſt comes to the Leſſor, the Court intends all Circumſtances, that ſhall conduce to that fact; for the Court doubts not when the Jury doubts not, 4 Rep. 65. Fullwood's Caſe.

The Jury find that J. C. came before the Recorder of London, Statute. and Mayor of the Staple, and acknowledged himſelf to T. R. in 200 l. Exception was taken, that there was no finding of any Statute there; for it was found, that this was ſecundum formam Statuti, and that it was by Writing. But per Cur. its good enough, for all Circumſtances ſhall be intended Raym. 150.

And there is another Rule in our Books perſuant to this laſt,In a Special Verdict all neceſſary circumſtances ſhall be intended. in a Special Verdict the Circumſtances ſhall be intended, or in a Special Verdict, the Circumſtances of every thing need not to be ſo ſtrictly found as in pleading. As in Ejectment, the Jury found he delivered the Leaſe upon the Land, but found not, that he had entred and claimed, Cr. Eliz. 167. Willis and Jermin. And in Goodall's Caſe, 5 Rep. it was reſolved, That all matters in a Special Verdict ſhall be intended and ſupplied, but only that which the Jury refer to the Conſideration of the Court.

Alſo in Molineux's Caſe, Cr. Jac. 146. It was excepted to a Special Verdict, That the Life of B. who was Tenant for Life,A Life and the Leſſor in the Action was not found: But per Cur. it ſhall not be intended that ſhe is dead, unleſs it been found. And in a Special Verdict, all neceſſary Circumſtances ſhall be intended, unleſs found to the contrary:Some things ſhall not be intended. But ſome things the Court ſhall not intend, as in Sadler and Draper's Caſe, Sir Thomas Jones, p. 17. where the Caſe was whether the next of the Blood being of the half Blood (i. e. whether the Brother of the half Blood of the Mother of an Infant, ſhall be Gardian in Socage of Land, by diſcent on the part of the Father,) Cro. Eliz. 825. But becauſe the Verdict did not find that the Leſſor of the Plaintiff, who claims to be Gardian in Socage, was proximus in ſangine à quel, &c. that the Court ſhall not intend it, and ſo no Title found pro Quer. Ideo nil. cap. per Bill.

If the Jury find a Special Verdict (viz.) A. deviſeth his Lands to his Executors quouſque they ſhall Levy ſuch Money, or his Heirs ſhall pay to them the ſaid Sum, and conclude upon the matter ſi, &c. but they do not find the Heir had not paid the Money.Difference between the Condition and Limitation of an Eſtate, as to the finding by the Jury. This quouſque the Heir pay the Money, is parcel of the Limitation of the Eſtate which ought to have been found: Otherwiſe, the Court who is to Judge upon the whole matter, ſhall not intend it, Tr. 19. Jac. B. R. Langley and Pain. But if in a Special Verdict, the Jury find J. S. was ſeiſed in Fee of Land, and made his Will, and by it deviſeth all his Eſtate to B. paying Debts and Legacies, and refer to the Court the matter in Law, (viz.) whether a Fee paſſeth by this, but find not that B. had paid the Debts and Legacies; yet this is a good Verdict, becauſe it is a Condition, properly and not a Limitation, Tr. 1651. Johnſon and Kerman; yet if the Verdict find that J. S. was ſeiſed in Fee of Land, and poſſeſt of certain Leaſes for years of other Lands, and by his Will deviſeth his Leaſes to J. D. and after deviſeth to his Executors all the Reſidue of his Eſtate, Mortgages, &c. his Debts being paid, and his Funeral expences diſcharged; this was not a perfect Verdict, the matter in Law referred to the Court being, whether the Executors had an Eſtate in Fee by this Deviſe in as much as it is not found, that the Debts were paid, &c. which is a Condition precedent ſo as the Executors cannot have it till the Debts paid, and venire de novo granted, Hill. 10 Car. 1. B. R. Wilkinſon's Caſe, Vide 2 Leon. 152. Allen and Hill's Caſe, Condition muſt be punctually found.

To this purpoſe it is laid down often in our Books as a Rule.Finding the ſubſtance of the Iſſue is ſufficient. That if the Jury find the ſubſtance of the Iſſue it is ſufficient, as in Ejectment of a Manor: If the Jury find there were no Freeholders, and ſo it is no Manor in Law; yet it being a Manor in Reputation, and ſo the Tenants paſs by the Leaſes, therefore this Verdict is found for him who Pleads the Leaſe of the Manor, for the ſubſtance is whether Bargain and Sale, de modo irrotulat' and not ſaid in ſix Months, its good in a Verdict but not in a Plea, 3 Keb. 180. vide ſupra Corbet and Stones's Caſe.

If in Ejectment a Leaſe is pleaded of a Manor, &c. and the Iſſue is quod non dimiſi • manerium, and the Jury give a Special Verdict, That there were not any Freeholders but diverſe Copyholders of the Manor, and that it was known by the name of a Manor, tho' it was not any Manor in Law for default of Freeholders; and tho' this was alledged in pleading to be a Manor,Manor in reputation, and not in ſtrict Law. which pleading is made by learned Men, and tho' this was in an Action adverſary and not amicable; yet, for as much as the Iſſue is triable by the Lay-gents, and in truth the Tenements in which, &c. paſs by the Leaſe; the Verdict is found for him that Pleads the Leaſe of the Manor, for the ſubſtance of the Iſſue is, whether it were demiſed or not, Vines and Durham's Caſe cited, 6 Rep. 77. in Sir Moyle Fincheb's Caſe.

8.What one cannot plead ſhall be found by Verdict. It is a Rule in Law, in ſuch Actions in which one cannot Plead, there the matter to be pleaded ſhall be found by Verdict, and this well; but where the Party may Plead there the ſame is to be pleaded by him, 1 Bulſtr. 166.

The Jury may find a Warranty being give in Evidence, for in Ejectment from Treſpaſs, and in Act on the Satute of 5 R. 2. cap. 7. A Warranty is not to be pleaded (or other perſonal Action:) The nature of a Warranty, and to have benefit thereby, is to be by way of Voucher and Rebutter in a real Action; and muſt Plead or loſe the benefit of it, but in perſonal Actions Collateral Warranty cannot be pleaded by way of Bar; yet it may be given in Evidence to a Jury, and the ſame is to be found by Verdict of the Jury, Vid. ibid. Heywood and Smith.

9. If any thing be omitted in the Declaration, or if more is put in the Declaration than is found by the Jury, if it makes a material variance between the Declaration and the Verdict, the Action ſhall abate as if a Declaration in Ejectment be of a Leaſe of three Acres; a Leaſe of a Moiety will not Warrant the Declaration: But if the variance be by way of Surplus or Defect, if it be not material in the extenuation of the Action, or Damages, Action will lye.

10.Verdict by preſumption. The Jury may give a Verdict by preſumption, as to find Livery in reſpect of long Poſſeſſion; but if they find the matter Specially, the Court will not adjudge this a Livery, 1 Rolls Rep. 132.

11. A Verdict that finds part of the Iſſue, and nothing for the reſidue is ſufficient, Vide poſtea.

12. Fraud ought not to be preſumed, unleſs it be expreſly found, 2 Rep. 25. 10 Rep. 56. Cr. Car. 549. Criſp and Pratt.

Where and in what Caſes Entry muſt be expreſly found or not, and of the force of the words prout lex poſtulat.

In Horewood and Holman's Caſe, 2 Bulſt. 29. Lands are given to the uſe of a Man and his Wife, the Remainder to the Heirs of the Body of the Husband; the Husband makes a Feoffment in Fee with Warranty, and takes back an Eſtate to him and his Wife for their Lives, the Remainder over to make a Remitter to the Wife, there ought to be an Entry,To make a Remitter, there muſt be a new Entry. Prout lex peſtulat. and no new Entry is found by the Special Verdict to be by the Husband, but only prout lex poſtulat. The Court adviſed a new Tryal, and to amend the Special Verdict, and to find the Entry of the Baron and Feme.

The time of the Entry of the Plaintiff is ſometimes material, as in Fort and Berkley's Caſe.The time of the Entry of the Plaintiffs Leſſor. Per Cur. In that Caſe which way ſoever the Law had been taken, Judgment could not have been given for the Defendant. There was a Leaſe made to Godolphin in Reverſion, under whom the Plaintiff claims. Cherſey the Leſſor of the Plaintiff did Enter upon the Poſſeſſion of Berkley the Defendant, but when he did Enter does not appear; then the Caſe is, Berkley was in Poſſeſſion. If the Leſſor of the Plaintiff enter'd before the Term began, he was a Diſſeiſor as it was, Dier 89. Clifford's Caſe. But its ſaid he was poſſeſt prout lex poſtulat, Prout lex poſtulat. as ſo he was of the Reverſion too, it does not appear but that he was a Diſſeiſor and ſo continued, Carters Rep. 159, 160.

If the Title appear to be in a Stranger, they muſt find an Ouſter made to him who had the Right.Where actual Ouſter muſt be • ound. And therefore in Ejectione Firme, If the Jury find a Special Verdict, being matter in Law upon a Leaſe for years, reſerving Rent upon Condition, &c. but no Title is found for the Plaintiff nor Defendant; but it is only found, that the Leſſor of the Plaintiff being a Stranger Enters into the Land and Leaſeth this to the Plaintiff, by which the Plaintiff was poſſeſt prout lex poſtulat, until the Defendant entred and ejected him; this is not a good Verdict, the Title appearing to be a in Stranger, without any actual Ouſter made to him who had the Right, 2 Rolls Abr. 699. Bland and Inman.

In an Ejectione Firme, the Jury find a Special Verdict, and find Special Matter in Law, whether J. S. had right to the Land, upon which the Court adjudged, That he has right to the Land. But they find farther,Ouſter Diſſeſin. That J. D Entered into the Land upon J. S. and was thereof ſeized prout lex poſtulat, and made the Leaſe to the Plaintiff, and the Leſſee was by force of this poſſeſſed, and it is not found that J. D. diſſeiſed J. S. and for that, upon this Verdict ſhall not be intended that J. D. ouſtred J. S. and diſſeiſed him, and then the Entry of J. D. and his Leaſe is void, and ſo an Action does not lie againſt a Stranger, who had nothing in the Land, as was Hitchin and Glover's Caſe.

In Ejectione Firme, by the Leſſee of a Colledge, if the Jury find a Special Verdict in this manner, (viz.) That the Colledge let this to A. upon Condition, and found a Special Matter in Law, whether the Condition be broken, and that the Colledge ſuppoſing the Condition broken by their Bayliff entred,Entry by a Colledge how to be found. and let this to the Plaintiff, this is not a good Special Verdict, without finding of a command given by the Colledge to the Bayliff to Enter, to be by Deed, for otherwiſe it is not good, 2 Rolls Abr. p. 700. Dumper and Simms.

A. was ſeiſed and demiſed to his Executors, the Lands in Queſtion for the performance of his Will, till the Executors levy 100 Marks, or until his Heirs pay to them 200 Marks, and that the Executors after his Death entred and were poſſeſt prout lex poſtulat, Prout lex poſtulat, how far extend. and being ſo poſſeſt granted to the Plaintiff, who entred and was poſſeſt till the Ejectment. This is uncertain, becauſe it is not found that the Heir had paid the Money,Super totam materiam. for they ſay ſuper totam materiam, and to ſay prout lex postulat, is not an affirmation of any certain Poſſeſſion, Palmer 192. Langly and Paine.

Of the Juries finding by Parcels.

It is a Rule:Verdict that finds part of Iſſue, and nonothing for the reſidue is inſufficient. A Verdict that finds part of the Iſſue, and nothing for the reſidue is inſufficient. As in Pemble and Sterne's Caſe, Raym. 165. The Demiſe is laid of a Park Meſſuage 300 Acres of Land, and the Verdict finds only as to parcel, and nothing of the reſidue for the Plaintiff or the Defendant; the Verdict is void; ſo is the Rule, 1 Inſt. p. 227. A Verdict that finds part of the Iſſue, and finding nothing of the reſidue it is inſufficient for the whole, becauſe they have not tried the whole Iſſue wherewith they are charged, Car. Jac. 113. Ejectione Firme of a Leaſe of Meſſuages, 3000—Acres of Land, 3000 Acres of Paſture in D. per nomina of Monkhal. and 5 Cloſes per nomina. On Not guilty the Jury gave a Special Verdict, (viz) quoad 4 Cloſes of Paſture containing by Eſtimation, 2000 Acres of Paſture, that the Defendant was Not guilty,Quoad reſid. quoad reſid. they find the matter in Law; this Verdict is imperfect in all, for when the Jury find that the Defendant was Not guilty of 4 Cloſes of Paſture containing by Eſtimation, 2000 Acres of Paſture it is not certain, and it 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; a Venire fac' de novo was awarded,A Verdict of more than declared for. Woolmer and Caſton's Caſe. But if the Verdict be of more than declared for, it ſhall be void for the reſidue. As Ejectment for him who pleaded all of 14 Acres, and the Jury find Guilty of 20 Acres, 14 Acres, The Plaintiff ſhall have Judgment for the and the Verdict ſhall be void for the reſidue, 2 Rolls Abr. 707. 719. Seabright's Caſe.

In Ejectment of a Manor, and ſo many Acres as includes the Manor; the Jury find for the Plaintiff as to the Manor, praeter the Services; and as to the Services Not guilty. And Judgment pro Quer. Here are 2 manifeſt Errors. 1. When the Court is of a Manor, the Jury cannot find for the Plaintiff, for that which is not a Manor; and there is none that brings Ejectment of a Manor,Ejectment of a Manor, how to be brought. but they alſo add the Acres that contain it, to the end, that if they prove it not a Manor they may recover according to the Acres, but they muſt enter it ſo, but not as here generally of both. 2. The Verdict being as much as the Count, the Judgment againſt the Plaintiff cannot be in Miſericordia, if it be ſuppoſed good. The Court held them to be manifeſt Errors and aſſignable by the Defendant, Hob. 108. Latch 61. Cr. Jac. 113. 1 Keb. 110. Hammond and Conisby. But I conceive that is not Law, for in Hammond and Conisby's Caſe, Ejectione Firme was of a Manor; upon Not guilty, there was a Verdict pro Quer. for the Manor, and quoad the Services Not guilty. Error was aſſigned, becauſe the Verdict is not for the Plaintiff, for the Manor, becauſe as to the Services it is for the Defendant.Surpluſe in a Verdict. But per Cur. The laſt part of the Verdict ſhall be taken general for the Plaintiff, Sid. 232. Ejectione Firme of a Meſſuage. On Not guilty, the Jury find the Defendant guilty of 2 parts of the Houſe: It was alledged in Arreſt of Judgment, That the Verdict has not found the Defendant Guilty according to the Count, which is of a Meſſuage an entire thing. Manwood contra: Omne majus continet in ſe minus; but if the Declaration had been of 2 parts of a Meſſuage, and on Not guilty, the Jury had found him Guilty of the entire Houſe, The Plaintiff ſhall not have Judgment, Savill 27.

In Ejectione Firme of a Meſſuage, if it be found that a little part of the Houſe is Built by incroachment upon the Land of the Plaintiff, and not the Reſidue; yet the Plaintiff ſhall recover for this parcel by the name of an Houſe.

It's laid down poſitive in Ablett and Skinner's Caſe in Sid. The Verdict may be of fewer parts than the Declaration. p. 229. that the Verdict may be of fewer parts than in the Declaration: As on Tryal at Bar in Ejectment the Declaration was of a fourth part of a fifth part in five parts to be divided, and the Title of the Plaintiff upon the Evidence was but of a third part of a fourth part of a fifth part in five parts to be divided, which is but a third part of what is demanded in the Declaration. It was ſaid the Plaintiff cannot have a Verdict, becauſe the Verdict in ſuch Caſe ought to agree with the Declaration; but per Cur' the Verdict may be taken according to Title; and ſo it was. But Qu. how the Habere fac' ſhall be executed.

If the Verdict in Ejectment contain more than the Declaration,If the Verdict contain more than the Declaration, the Plaintiff may releaſe his Damages. the Plaintiff may releaſe the Damages. Q. if he may releaſe part of the Land, Sid. p. 412.

Ejectione Firme of the Manor of Dale; on Non Culp' pleaded, the Jury find, quoad unum Meſſuagium parcel'As to a Manor. Manerij praedict', guilty; quoad reſid Not guilty. It is moved he cannot have Judgment; the Action is brought of the Manor, and the Jury find him guilty of one Houſe only, ſo he cannot have his Judgment according to his demand. So Delabar and Hudleſtone's Caſe. Ejectment of a Rectory, and upon Non culp' pleaded, the Defendant was found guilty of Tythes without the Glebe; and he could not have Judgment, the Glebe being the Principal. So Ejectione Firme of a Manor, and proves only the Rents, he ſhall not have Judgment. Ejectment was of an Houſe, the Special Verdict was, That the Plaintiff was ſeiſed in Fee; and if there be ſeveral things laid in Ejectione Firme, If ſeveral things are laid in Ejectione Firme, and the Jury find the Defendant guilty in one, the Plaintiff ſhall have Judgment of that. as Houſe, Garden, &c. and the Jury find guilty of one only, the Plaintiff ſhall have Judgment of this. In Delabar's Caſe it was not found that the Tythes were parcel of the Rectory, and ſo it differs from this Caſe. In Ejectione Firme of a Manor and ten Acres, it is no Plea that the ten Acres are parcel of the Manor, aliter in Entry in the nature of an Aſſiſe. Adjornatur.

The Jury find the Defendant guilty of one Moiety, and for the other Moiety a Special Verdict, this is no Error; for the Jury may conclude upon the Moiety,Where the Jury may conclude upon a Moiety or not. for it may be he entred into one Moiety, and not into the other; but if he declares upon the whole, they cannot find him guilty of a Moiety, 3 Bulstr. 229. Milward and Watts. But if one declares in Ejectione Firme upon a Fence made in certain Lands, and he has Title but for a Moiety, the Jury are not to conclude upon the Moiety, for they are not to judge upon this, but the Court.

Where a dying ſeiſed or poſſeſt, muſt be found.

A Man by his laſt Will and Teſtament deviſed all his Fee-ſimple Lands whatſoever to his Brother, on Condition he ſuffer his Wife to enjoy all his Free Lands in H. du • ing her Life, and the Jury found the Teſtator had only a Portion of Tythes in H. but they did not find the Teſtator died ſeiſed of the Tythes, which without doubt had been ill upon the Demurrer. And Rolls ſaid, He would ſee the Notes by which the Special Verdict was drawn up, if that could help it. For they all agree the Verdict ought to have found the Dying ſeiſed, Stiles Rep. 279. Saunders and Rich.

In Ejectione Firme if the Jury find a Special Verdict, That J. S. was ſeiſed of the Manor of D. in his Demeſne as of Fee, of which Manor of Copyholder in the place where, &c. does waſte by the cutting down an Oak; and that after J. S. dies, and the Leſſor of the Plaintiff being his Couſin and Heir, enters into the Manor, and into the Place where, &c. for the ſaid Forfeiture, and was of this ſeiſed in his Demeſne, as of Fee, and concludes, ſi ſuper totam materiam, &c. this is not a good Verdict, becauſe it is not found that J. S. died ſeiſed of the Manor, and that this diſcended to the Leſſor as his Couſin and Heir; for it may be J. S. aliened the Land, and that the Father of the Leſſor, or the Leſſor himſelf might repurchaſe it, and that he was alſo Couſin and Heir to J. S. for although it be in a Verdict, yet it ſhall not be intended, that the Fee continued in J. S. at his death, and that he died ſeiſed thereof without finding of it, P. 1 Car. 1. Cornwallis and Hammond.

Of Uncertainty in Special Verdicts.

As to Perſons. As to Acres and Parcels. As to the Place or Vill. As to time.

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 over. E. enters, F. dies without Iſſue; they find Gertrude Couſin and Heir to F. who levied a Fine, but they find not Gertrude was Heir to the Deviſor;Do not find Heir. 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 being Heir to a Warranty collateral) was not good; for he might have elder Sons by another Venter, or there might be an Attainder, or the Warranty might be diſcharged 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;Part of an Houſe. the Jury find him not guilty for part, and guilty de tanto unius Meſſuagij in occupatione, &c. quantum ſtat ſuper Ripam. Per Cur' the Verdict 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. The Court muſt be informed of the Certainty, and it ought to appear to them. 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 Ejectione Firme was brought for the Gate-houſe at Westminſter, and the Jury found the Defendant guilty for ſo much as is between ſuch a Room and ſuch a Room, and it was adjudged good,Guilty of a Room is good. Marſh. Rep. 47. Juxon and Andrews.

As to Certainty of Acres.

Ejectione Firme was brought of 400 Acres of Land;As to Acres. and the Jury find the Defendant quoad all beſides three Acres parcel tenementorum praedictorum Not guilty; Quoad, &c. 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. parcel' tenementorum 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 Execution can be made of Pieces, 2 Rolls Abr. 694. Pawlet and Dr. Redman.

And this is the Difference between Treſpaſs 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 bounded in this Action, where Damages are only to be recovered. But if it were in Ejectment the Verdict had been ill;It muſt be certain in what part the Plaintiff muſt have his Hab. fac. poſſeſſ. aliter in Treſpaſs. for it is not certain in what part the Plaintiff ſhall have his Habere 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 Manor 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 Defendant was not guilty of four Cloſes of Paſture containing by Eſtimation 2000 Acres of Paſture, Quoad reſiduum muſt be certain. 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, De Meſſuagiis ſive Tenementis is ill, and the Verdict helps it not. 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 Twiſden had it been de uno Meſſuagio ſive Tenemento 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,As to Acres and Pariſhes. the Declaration was of ſeveral Meſſuages in the ſeveral Pariſhes of St. Michael, St. 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 called the Pariſh of St. Peter, nor none called 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 Manerio & de decem Acris in A. B. and C. there it would be well enough, tho' the Manor lay elſewhere, provided that ten Acres lay within 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 hundred Acres in D. and S. and Non culp' pleaded, 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,Where ever but one Acre 〈◊〉 found certain, • ne may releaſe • ll the reſt. 1 Rolls 784. Rhethorick and Chappel's Caſe, where-ever an Acre 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.Acres in two Vills, and the Jury found the Defendant Guilty, and ſay not how many lie in one Vill, and how many in another. And it was moved in Arreſt of Judgment, That it was uncertain in which of the Vills thoſe Lands lay; and therefore no Judgment can be given: Sed non Allocat. and adjudged 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 Execution. 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, ſuppoſing 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 • 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.

Of a Verdict in other Leaſes, or Date than is declared upon.

The Plaintiff Declares of a Leaſe by two Copyhold-Lords,Jury find on a Demiſe generally. Leſſors of the Plaintiff for a Term certain; and the Jury find a Demiſe generally, and do not find the Leaſe whereupon the Plaintiff Declares, and it may be any other Leaſe which might not be determined at the time of the Verdict, but is now ſince; and the Ejectment is only found out of this,Count of a Leaſe for years in Poſſeſſion, the Jury ſound the Leaſe made on another Day, its againſt the Plaintiff. Aliter, if it be made to commence at a Day to come. and not on the Leaſe declared on, 19 Car. 2. B. C. Lenthal and Thomas.

In Ejectment, if the Plaintiff Declares of a Leaſe for years made the firſt of May, to commence at the firſt of St. Michael, then next enſuing (which is now paſt) if the Jury find that the Leaſe was made the firſt of June, or at any other Day before the Feaſt of S. Michael, This is found pro Quer. For the Day of the making is not material, ſo that it was made to commence at a Day to come. By Foſter its the common practice, 1 Rolls Abr. 704.

But if in Ejectment the Plaintiff Declares of a Leaſe for years in Poſſeſſion ſuch a Day, and the Jury find the Leaſe to be made at another Day; this ſhall be found againſt the Plaintiff, becauſe it is not the ſame Leaſe. So it is,

If a Man in an Ejectione Firme, Declare of a Leaſe made the 5th of May, 10 Jac. Habend. from the Annunciation before for three years. And the Jury found the Leaſe to be made the 15 Day of May, 10 Jac. Habend. from the Annunciation before (being the ſame Lady-day) for three years: This is found againſt the Plaintiff, becauſe this was a Leaſe in Poſſeſſion at another Day (ſcilicet 15 of May) than the Plaintiff had counted, altho' it had the ſame Commencement. But in Muſgraves's Caſe it was, The Leaſe in the Declaration was a Leaſe made the 5 of May, 10 Jac. Habend. from the Feaſt of the Annunciation then laſt paſt for 21 years extunc ſcilicet, from the Feaſt of the Annunciation next enſuing. But the Leaſe found by the Jury, was a Leaſe made the ſaid 5 of May, 10 Jac. per Indent. bearing Date the ſaid 5 Day of May, Anno 10 Jac. Habend. from the Feaſt of the Annunciation beate Marie Virginis tunc ultimo preterito pro termino 21 annorum prox ſequen' dat' dicte Indenture. It was adjudged pro Quer. and ſo affirmed in a Writ of Error. But I conceive this Caſe is beſt reported by Allen. The Plaintiff declared, That J. S. the 5 of May, 10 Jac. demiſed a Houſe to him, Habend. from the Feaſt of the Annunciation laſt paſt, for 21 years extunc prox. ſequend. and the Defendant the ſame 5 Day of May ejected him. And upon Not Guilty the Jury found, that J. S. the ſaid 5 of May by Indenture bearing Date the 4 of May, demiſed the Houſe to the Plaintiff Habend. from the Feaſt of the Annunciation laſt paſt, for 21 years next enſuing the Date hereof fully to be compleat and ended. And upon the Verdict the Plaintiff had Judgment, which was affirmed in Scaccario. The Term began from the Feaſt of the Annunciation, in Computation of the 21 years, and on the 5 of May, in point of Intereſt, Allen p. 77.

In Pope and Skinner's Caſe,The Plaintiff muſt make his Title truly. The Plaintiff Declares of a Leaſe made to him the 30 Day of March, 11 Jac. Habend. from the Feaſt of the Annunciation next before for a year. The Defendant Traverſeth the Leaſe modo & forma. The Jury find a Leaſe to the Plaintiff on the 25 Day of March for one year, from thence next enſuing: This is againſt the Plaintiff, for being in Ejectione Firme, he Demands and Recovers the Term, and therefore muſt make his Title. Aliter, in Replevin, Hob. pag. 73. Pope and Skinner.

Ejectment of a Leaſe made the 12 of December, Habend▪ à primo die. On Not guilty, The Jury found a Leaſe made in haec verba, which was dated the 1 of December, Hab. from henceforth, but delivered the 12 of December. It was objected, That from the Day of the Date, and from henceforth are ſeveral Commencements, for the one begins the Day it was Sealed, the other the Day after. Habend. hence forth. But per Cur. They are both one, being a computation of time from the time paſt; and both ſhall be pleaded to begin from the Day of the Date, when the Leaſe is afterwards Sealed at another Day; and if the Leaſe be made the 1 of December, Hab. henceforth, the Ejectment may be alledged the ſame Day. Aliter, If it be à die datus. Pro Quer. Cr. Jac. 258. Lewellin verſus Williams.

Verdict finds,The Averment of the Eſtate Tail to be found. that the Leſſor of the Plaintiff was ſeiſed in Tail of the Rectory, &c. and does not ſhew the beginning of the Eſtate Tail, which is the particular Eſtate. Per Cur. It is an apparent fault, Cr. Eliz. 407. Baker and Searle.

In the ſaid Caſe where the Party comes in by a Limitation of an Uſe,Where when the party comes in by Limitation of Uſe▪ it muſt ſay, vigore ſtat. the Verdict ſaith, virtute cujus dimiſſionis, and it ought to have been & virtute Statut. Per Cur. This is an apparent fault in Subſtance and Form.

The Iſſue in Ejectment was, if Julian the Wife of the Defendant was alive at ſuch a time;Diverſity of names. and the Jury found, that Jenimet the Wife of the Defendant was alive at ſuch a time. Per Cur. They ſhall not be adjudged one and the ſame Perſon, without finding alſo by the Cuſtom of the Country, that Women baptiſed by the name of Julian, have beenalſo called Jenimet, Moor 411. No. 560. Huntbach and Shepard.

Verdict as to Baron and Feme.

In Ejectione Firme againſt Baron and Feme. On Not guilty pleaded, and a Venire fac' granted, the Jury found the Wife Note guilty, and found a Special Verdict as to the Huſband,Wife ſound Not guilty, and Special Verdict as to the Husband. which Special Verdict is afterwards adjudged inſufficient by the Court. A Venire fac' de novo ſhall be awarded for both, as well for the Wife as the Husband, and upon this new Writ the Wife may be found Guilty, becauſe the Record and Iſſue is intire; and for this their Verdict is inſufficient in all and void, 2 Rolls Abr. 722. Langly and Pain. Venire de novo. So in Swan's Caſe, Stiles 412. Ejectment againſt Baron and Feme, and the Feme is found Ejector by the Verdict, and nothing is found concerning the Husband, and a Venire fac' de novo was awarded, unleſs they will agree to amend the Verdict according to the Notes,

Where, and in what Cafes Special Verdicts may be amended.

Where a Special Verdict is not entred according to the Notes,Record of a Special Verdict amended. the Record may be amended, and made agree with the Notes at any time, tho' it be 3 or 4 Terms after it is entred, 4 Rep. 52. 8 Rep. 162. Cr. Car. 145.

And where a Verdict is certainly given at the Tryal, and uncertainly returned by the Clerk of the Aſſizes, Poſtea where amended. &c. the postea may be amended, upon the Judges certifying the truth, how the Verdict was given, Cr. Car. 338.

The Plaintiff was Non-ſuited at the Aſſizes,Non-ſuit • o • default of Warrant to try the Cauſe not Recorded. for default of the Warrant of the Juſtices to try the Cauſe, (viz.) for not confeſſing Leaſe Entry and Ouſter, and prayed that the Non-ſuit might not be Recorded, which the Court granted, and an Alias Diſtringas, 1 Keb. 508. Pits and Viner, Cro. Car. 203. Aquila Wicke's Caſe.

If the Plaintiff makes Title upon a Demiſe made by Tho. Bill and Agnes his Wife, and the Parties are at Iſſue, and the Record of Niſi prius was entred by the Clerk, that the ſaid Tho. Bill, and Anne his Wife made the Demiſe,Record of Niſi prius, variance from the Roll not amendable. &c. ſo that the Record of Niſi prius differs from the Roll; this ſhall not be amended, for if the Record ſhould be amended, the Jury ſhould be attaint, in as much as they found a Leaſe made by Tho. Bill and Agnes his Wife; and peradventure this Leaſe will not prove a Leaſe, by Tho. Bill and Anne his Wife, 1 Rolls Abr. 202. King and King.

The Jury are to find Coſts and Damages in Debt, Treſpaſs, Ejectment, &c,

IF the Plaintiff miſtake his Declaration,Regular. the Defendant ſhall have Coſts. The Plaintiff may relinquiſh his Damages, where part of the Action fails, and take Judgment for the other.Releaſe of Damages. And ſo is the Rule, If part of the things Demanded in this Action are well demanded, and part of the things demanded are not well demanded, and Verdict is given for the Plaintiff for the whole, and entire Damages are given, The Plaintiff may releaſe all the Damages in that which is not demanded, and pray Judgment for the Reſidue; and this ſhall aid Error if Judgment be given accordingly. As in Ejectione Firme of a Meſſuage, Cottage and Tenement, if it be found for the Plaintiff, and entire Damages given for the whole, becauſe Ejectione Firme does not lie of a Tenement, the Plaintiff may releaſe all the Damages, becauſe it is entire, and have Judgment for all the Land ſaving the Tenement; and this ſhall not be Erroneous. So in Ejectment of Land, and de libertate Piſcharie, for libera Piſcharia, which is not good, the Plaintiff may Releaſe all the Damages, and have Judgment for the Land only, altho' he cannot be ſaid properly to Releaſe Damages, as to the Piſchary where none were, Godb. pag. 354. No. 439. 1 Rolls Abr. 786. Clive and Vere. 1 Rolls Abr. 784, 786. Retorick and Chappel.

Ejectment was for Entry into a Meſſuage ſive tenementum, and 4 Acres of Land to the ſame belonging. As to the Meſſuage ſive tenementum, The Declaration is uncertain, and if the Damages are Releaſed,Warranty. the Coſts are gone alſo. It is uncertain to which the 4 Acres belong, i. e. to the Meſſuage or Tenement. But per Cur. as to the 4 Acres its certain enough, and the words (to the ſame belonging) are merely void, 3 Leon. p. 228. Wood and Pain.

In Ejectment Judgment is againſt the Defendant who dies,Executors not to pay Coſts. and his Executor brings a Writ of Error and is Non-ſuited. He ſhall not pay Coſts; an Executor is not within the Statute for paying of Coſts, Occaſione dilationis, Mod. Rep. 77.

In Ejectment againſt 2. A. B. they prayed to be made Defendants, and were ſo, confeſſing Leaſe, Entry and Ouſter, and at the Tryal A. confeſſed ſo much as was in his Poſſeſſion for certain; but B. would not proceed with him, and the Plaintiff was Non-ſuit againſt both. He that tried it prayed Coſts, which the Court granted, but they muſt joyn in the Suit of Execution for Coſts, 2 Keb. 219. Sir Cyril Wych's Caſe.

The Leſſor of the Plaintiff in Ejectment ſhall be liable to Coſts,Feme liable to pay Coſts on Baron Death. the Leaſe being made by Baron and Feme; on his Death ſhe is liable as well as other Joyntenant Surviving, 1 Keb. 827. Morgan and Stapel's Caſe.

The Leſſor of the Plaintiff by ſeveral Rules of Court on Demand,The Leſſor of the Plaintiff where to pay Coſts. ought to pay Coſts upon the Inſufficiency, or Skulking of the Plaintiff in Ejectment, 1 Keb. 17.

The Leſſor of the Plaintiff is liable to pay Coſts (tho' he ſhall never be forced to give Security for them) but the Leſſor of a Tenant in Poſſeſſion is not liable to Coſts, becauſe tho' he may come in gratis and defend his Title,Tenant in Poſſeſſion liable to pay Coſts by the Law. yet the Tenant in Poſſeſſion, is only liable to pay Coſts by the Law. But only by the Courſe of the Court, unleſs the Tryal be by the Leſſors means brought to the Bar, and then he ſhall never have a ſecond Tryal at Bar, before he hath paid the Coſts of the former Tryal; but yet the Court for Non-payment of Coſts, will not hinder proceedings in the Country. Per Cur. 1 Keb. 106. Latham's Caſe.

Note, In Judgment againſt his own Ejector, no Coſt to be paid by the Tenant in Poſſeſſion. Upon a Judgment againſt his own Ejector in defalt of confeſſing Leaſe, Entry and Ouſter according to Rule of Court, without Special Rule no Coſts ſhall be paid, by H. The Tenant in Poſſeſſion that made the defalt, &c. Contra, upon Tryal had againſt H. becauſe the Plaintiff hath the Benefit of the Suit, viz. Judgment againſt his own Ejector, whereby he may recover the Poſſeſſion, 1 Keb. 242.

Verdict was for the Defendant,Allegation by the Plaintiff to ſave his Coſt, not allowed. and the Plaintiff to ſave his Coſts, alledged, That the Venue was miſawarded, and that there was a Fault in the Declaration; but reſolved per Cur' the Defendant ſhall have his Coſts, 2 Rolls Rep. 327: Pritchard and Reynell. Palmer 365. meſme Caſe,

The Plaintiff in Ejectment was nonſuited,The Plaintiff not to take advantage of his own inſufficient Declaration. which was recorded, and the Defendant ſued for Coſts upon the Stat. 4. Jac. c. 3. The Plaintiff alledgeth inſufficiency in his own Declaration to avoid Coſts upon the Words of the Stat. That in Ejectione Firme and every other Action where the Plaintiff might recover Coſts, &c. If it had been found for him, that then upon Nonſuit, &c. in every ſuch Action the Defendant ſhall have Judgment to recover Coſts againſt him; and the Plaintiff pretends in ſuch Action he cannot recover where the Declaration is not ſufficient. But per Cur' there is no reaſon the Plaintiff ſhould take Advantage of his inſufficient Declaration, Palmer's Rep. 147. Dove and Knapp.

Debt was brought on the Stat. Coſts on Stat. 8 Eliz. on Nonſuit, and the Stat. miſtaken. of 8 Eliz. for Coſts in an Ejectione Firme, the Plaintiff being nonſuited, ſuppoſing the Statute to be made ad Parliamentum tentum 8 Eliz. whereas the Parliament began Anno quinto, and by Prorogation was held in 8 Eliz. ſo it ought to have been ad Seſſionem Parliamenti tent' Anno octavo Eliz. and ruled to be ill, Cro. Jac. 111. Ford and Hunter.

If no Continuance be entred,Coſts for want of Continuances entred. then a Diſcontinuance may be entred, and he may recover Coſts in Ejectment, 2 Bulſtr. 63.

Per Stat. When Nonſuit ſhall be for want of a Declaration. 13 Car. 2. c. 11. Nonſuit ſhall be for want of a Declaration before the end o • the next Term after Appearance, and Judgment and Coſts againſt the Plaintiff, Stat • 13 Car. 2. c. 11.

In all perſonal Actions, and in Ejection Firme for Lands, &c. depending by Origin •• Writ,There need not be 15 days between the Teſte-day and Day of Retorn. after any Iſſue therein joyned, an • alſo after any Judgment had or obtained, there ſhall not need to be Fifteen Days between the Teſte-day and Day of Retorn o • any Writ of Venire fac', Habeas Corpus, Juratt' Diſtringas Jurat', Fiere fac' or Cap' ad ſat', and the Writ of Fifteen days between the Teſte-day and the day of Retorn of any ſuch Writ, ſhall not be aſſigned for Error, Stat. 13 Car. 2. c. 11.

Infant Leſſor in Ejectment ſhall pay Coſts 3 Keb. Infant Leſſor pays Coſts. 347. Maſten and King.

Upon a Verdict againſt all Evidence the Court will tax Coſts, and will not ſuſpend it till a new Tryal, 1 Keb. 294.

If the Defendant, whoſe Title is concerned in an Ejectione Firme, will not defend his Title to the Lands in Queſtion, and the Verdict do paſs againſt the Plaintiff, the Ejector may releaſe the Damages, Pr. Reg. 100.

Note, This Rule, as to paying of Coſts, if a Man had a Verdict in Ejectment, The ſole Remedy for Coſts in the firſt Tryal is by Attachment, unleſs the ſecond Tryal be in the ſame Court after a Verdict. and Coſts taxed, and an Attachment for not paying them; and whereas he cannot procure them of him who ought to pay them, he ſues the ſame Party for the ſame thing again in an other Court, and he ſhews this by Motion, and prays he may not proceed till Coſts paid; yet the Court will not grant it, but he ought to reſort to the Remedy of the Proceſs of the Court where he recovered for theſe Coſts; and ſo it is if it was in the ſame Court for Coſts for not going on to Tryal; but if it were for Coſts after a Verdict in the ſame Court, there upon Affidavit of this, it's good Cauſe to ſtay the ſecond Tryal for the ſame thing, unleſs the Coſts of the firſt be paid, Sid. p. 229. Auſtin and Hood.

Upon a Tryal at Bar in Ejectment where two were made Defendants,Where Coſts are confeſſed on Leaſe, Entry and Ouſter, &c. and that the other did not. and had entred into the Common Rule; and at the Tryal one appeared and confeſſed Leaſe, Entry and Ouſter, but the other did not; and after Evidence given, the Plaintiff was Non-ſuited, and Coſts taxed for the Defendants. Per Cur' both theſe Defendants are intitled to the Coſts, and he that did not appear, might releaſe them to the Plaintiff. But the Court ſaid, If there ſhould appear to be Covin between the Leſſor of the Plaintiff and the Defendant, who did appear to releaſe the Coſts, they would correct ſuch Practice when it ſhould be made to appear, 2 Ventr. 2. W. & M. Fagge and Roberts.

Berkley had Judgment in Ejectione Firme in C. B. and Execution of his Damages and Coſts. Foot brings Error, and the Judgment is affirmed; whereupon B. prays his Coſts for Delay and Charges, but could not have them, for no Coſts were in ſuch Caſe at Common Law. And Stat. 3 H. 7. c. 10. gives them only where Error is brought in delay of Execution, and here tho' he had not Execution of the Term, yet he had it of his Coſt, 1 Ventr. 124.

Adminſtrator brought a Writ of Errorupon a Judgment given in Ejectment againſt the Inteſtate. Per Cur' he ſhall pay no Coſts, tho' the Judgment was affirmed, and the Writ brought in Dilatione executionis, 1 Ventr.

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;The Entry. 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 Error were well brought, in regard the Courſe of the Common Pleas is not to make up the Judgment, until the Writ of Enquiry be retorned. Rolls ſaid, A Writ of Error may be brought before the Writ of Enquiry be retorned in Ejectione Firme, for in that Action the Judgment is compleat at the Common Law before it be retorned; for the Judgment 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 recovered, 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 Judgment, 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 compleat 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 Council therefore moved for a Certiorari. Rolls, take it, but it will do you no good, for the Judgment is well, Stiles Rep. Glide and Dudenu's Caſe. p. 122. Crook and Sanny. Stiles 127.The Writ of Error lies upon the Judgment before the Retorn of the Writ of Enquiry, and why.

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 Damages, and Judgment upon it, for the Judgment 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 Poſſeſſion ſans Remedy. So it is if a Man recover 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. Newton 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. Abatement by Death after Judgment or pendant Error, but not after Affirmance. 2. c. 8. by Affidavit of Cesty que vie's Death after the Judgment 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 recoverable 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.

The Form of entring Judgments in this Action.

In Cr. Quod recuperet poſſeſſionem termini. El. 144. Matthew and Haſſel's Caſe. It was aſſigned for Error, That the Judgment was, Quod recuperet poſſeſſionem termini praedict', where it ſhould be, Quod recuperet terminum; for as in a Real Action he is to recover Seiſin, ſo in a Perſonal he is to recover Poſſeſſion, and the Writ is habere fac' poſſeſſionem, 1 Leon. p. 175. meſme Caſe.

All the Courſe of Entries,How the Entry is when part is made pro Quer', and part againſt. when part is found for the Plaintiff, and part againſt him, is to enter only, Quod Def. eat inde ſine die quoad, &c. whereof he is acquitted. It was Taylor and Woldboro's Caſe, Cr. El. 768. Error of a Judgment in Ejectment was brought, becauſe the Defendant was found Not guilty quoad a third part; and the Judgment is entred thereupon, Quod Def. eat inde ſine die & quer 'in miſericordia, &c. whereas it ought to have been, Quod le Plaintiff nil capiat per Billam for that third part, ſed non allocat • r cauſa qua ſupra, Cro. El. 768. and the Court would have affirmed the Judgment, but becauſe the Plaintiff had not appeared that Term, they cauſed him to be nonſuited.

In 1 Rolls Rep. Quod Def. ſit quietus. 51. Error was aſſigned becauſe the Judgment in Ejectione Firme in Wales was Quod Def. ſit quietus, ſuch Judgment being only given in a Writ of Right and ſuch Actions which are final; but this Action is not final, and the Judgment ſhould be Quod Def. eat inde ſine die, Sir William Morris and Cadwallader's Caſe.

In Ejectione Firme, Quod Def. remaneat indefens'. if upon Non ſum informatus pleaded, Judgment be given, Quod Def. remaneat indefenſus, without ſaying verſus querent', yet its good, 1 Rolls Abr. 772. Fiegot and Mallory.

Ejectment was againſt ſeveral Defendants,Againſt ſeveral Ejectors. &c. they were fined ſeverally, where the Ejectment was againſt them all joyntly; but becauſe they were found ſeveral Ejectors of ſeveral Parcels, the Judgment was good (ſcilicet) quilibet capiatur quoad his Parcel; and if it had not been joynt, it had not been been ſufficient, Bendl. 83. Darcy and Maſon.

The Plaintiff ſhall be in Miſericordia but once.The Plaintiff ſhall be in Miſericordia but once. As Ejectment with Force, three of the Defendants were found Guilty of the Houſe, and ten Acres of Land, and Not guilty for the Reſidue. The fourth Defendant is found Not guilty generally. And Judgment was entred, That he ſhould recover his Term in the Houſe and ten Acres of Land, and Coſts againſt the three Defendants, and that the ſaid three Defendants capiantur, and that they be acquitted quoad reſiduun, and that the Plaintiff quoad the three Defandants pro falſo clamore for ſo much as they were acquitted; & pro falſo clamore, againſt the fourth Defendant, ſit in Miſericordia. Its good enough, and the courſe, that the Plaintiff in ſuch Caſes be in Miſericordia but once, which is ſpecially entred, Crok. Car. 178. Dockrow's Caſe.

In Croke and Sam's Caſe, Stiles 122. 346. The Judgments was, ideo conſiderat' eſt qd. recuperet, and there wants, & Def. capiatur, it is Erroneous.

Form of the Entry in Caſe of the Death of the Plaintiff or Defendant.

Note, That 3 Plaintiffs in Ejectment were, and on general Iſſue it was found for the Plaintiffs.One of the Plaintiffs died during a Curi: adviſare. And 4 days after the Verdict given, was moved to ſtay Judgment, a Special matter in Law, whereof the Juſtices were not reſolved, and gave day over, and in the mean time one of the Plaintiffs died. This ſhall not ſtay Judgment, for the Poſtea came in 15 Paſ. which was the 16 of April, at which Day the Court ought to give Judgment preſently. But Cur. adviſare vult, and on the 19 of April one of the Plaintiffs died, and the favour of the Court ſhall not prejudice; for the Judgment ſhall have relation to the 16 day of April, at which time he was alive, 1 Leon. 187. Iſley's Caſe.

In Ejectment two Defendants were found Guilty,The Death of one Defendant ſhall not abate the Writ. and the other not. The one that is Not guilty dies, The Plaintiff ſhave Judgment againſt the other: So it is, if he that is Dead had been Guilty, becauſe this Writ is but as a Treſpaſs, where the Death of one Defendant ſhall not abate the Writ, Moor 469. 673. Griffith and Lawrence's Caſe.

Ejectione Firme againſt Baron and Feme. Ejectione Baron and Feme, Baron dies. And Verdict pro Quer. and after between the Verdict and day in Banco the Baron dies, and therefore the Court in Lee and Rowley's Caſe, 1 Rolls Rep. 14. adviſed the Plaintiff to relinquiſh this Action, and only to enter the Verdict for Evidence; for if Judgment is given againſt the Defendant, and one is dead at the time of the Judgment, then this will be Erroneous, per Dodderidge and Mann Preignotary. But Coke ſaid, The Plaintiff may make allegation that the Husband is dead, and ſhall have Judgment againſt the Wife. And it hath been adjudged lately, Ejectment againſt Baron and Feme, which are but one perſon in Law; yet, if the Husband dies, the Suit ſhall proceed againſt the Wife, Hardr. 61. But in Rigley and Lee's Caſe, Cr. Jac. 356. Ejectment againſt Baron and Feme, after Verdict Baron dies before the day in Banco, becauſe it is in the nature of a Treſpaſs, and the Feme is charged for her own fact. Per Cur. The Action continues againſt the Wife, and Judgment ſhall be entred againſt herſelf, becauſe the Baron was dead.

Ejectment againſt divers,Record where not to be amended. all plead Not guilty; and divers Continuances were between them all, where revera, one of the Defendants was dead after Iſſue joyned, and a Verdict was after found pro Quer. and the Record was moved to be amended. Per Cur. we cannot do it: After Verdict and before Judgment the Plaintiff may ſurmiſe, that the Defendant was dead before the Verdict and Continuance was againſt him,One Defendent dies after Iſſue joyned. as in full Life, Jones 410. Sir John Fitzherbert verſus Leech. And

In Ejectment to try the Cuſtom of Copyhold.Suggeſtion entred on the Roll, one Defendant being dead after Non-ſuit. The Plaintiff was Non-ſuit, and one of the Defendants being dead. Hales Chief Juſtices, adviſed to Enter a Suggeſtion on the Roll that one was dead; elſe the Judgment for the Defendants on the Non-ſuit, will be Erroneous as to all, M. 23 Car. 2. B. R. Hawthorn and Bawdan.

Ejectment was brought againſt ſeven,Ejectment againſt ſeven, and one dies hanging the Writ and Error brought. one dies, hanging the Writ; and the Judgment was given againſt the ſix, without ſpeaking any thing of the ſeventh, where the Judgment ought to be againſt them that were in Life, and a nil cap. as to him that was dead. Otherwiſe, there is a variance between the Writ and Judgment: And a Writ of Error was brought, but it was not well brought; for the ſeventh joyned in the Writ of Error, which was ad grave damnum of all the ſeven. But had it been omitted ad grave damnum of him that was dead, it had been good, 2 Rolls Rep. 20. Bethell and Parry, Pal. 152. Meſme Caſe.

In Hide and Markham's Caſe it was Ruled,After Verdict and before Judgment the Plaintiff dies and Judgment his given for him the ſame Term. That if one bring Ejectione Firme in B. R. and there had a Verdict in a Tryal at Bar; and after, before Judgment he dies, and after the Judgment is given for him the ſame Term; this is not Error, for that the Judgment ſhall relate to the Verdict. But if the Verdict paſs againſt the Plaintiff at the Niſi prius, and after, before the Day in Bank he dies, and after Judgment is againſt him; this is Error, for as much as Judgment is given againſt a dead Man, 1 Rolls Abr. 768. and Jurdan's Caſe, ibid.

The Plaintiff in Ejectment dies.'The Plaintiff dies after Verdict and Judgment was not ſtaid and why. Addiſon's Caſe, Mod. Rep. 252. Yet as that caſe was the Court would not ſtay Judgment, for between the Leſſor of the Plaintiff and the Defendant, there was another Cauſe depending, and tried at the ſame Aſſizes when this Iſſue was tried, and by Agreement between the Parties, the Verdict in that Cauſe was drawn up, but agreed it ſhould enſue the Determination of this Verdict, and the Title go accordingly: Now the ſubmiſſion to this Rule was an implicit Agreement, not to take advantage of ſuch occurrences as the death of the Plaintiff, whom we know no ways to be concerned in point of Intereſt and many times but an imaginary perſon. (Per Cur. We take no notice judicially, that the Leſſor of the Plaintiff is the Party intereſted,What notice the Court takes of the Leſſor of the Plaintiff. and therefore we puniſh the Plaintiff, if he Releaſe the Action, or Releaſe the Damages.) It was ſaid too in behalf of the Judgment, That there was a Man of the ſame name in the County with him that was made Plaintiff: And by the Court that is ſufficient, and the Court ſhall intend it to be him, were there any one of the ſame name in rerum natura.

It is ſaid in Cooper and Franklin's Caſe.Ejectment for the whole, and a Title but to a Moiety, Judgment ſhall be for the whole. If one brings Ejectione Firme for the whole, having Title but to a Moiety, that i • hath been adjudged againſt Bracebridges's Caſe, in Plowd. He ſhall have Judgment for a Moiety, 3 Bulſtr. 185.

In what Caſes, and for what Cauſes Judgments in Ejectment are Arrestable or Erroneous.

In Savern and Smith's Caſe,Judgment for the whole where it ought to be for a Moiety. Judgment was de integris tenementis, where it ought to have been for a Moiety; The Judgment was given for the whole, and intire Damages aſſeſſed by the Jury. Its Error, Croke Car. 7.

The Declaration was, Qd. per Indentur. dimiſit decimas garbar. Rectorie de, &c. una cum quodam horreo & gardino eidem Rectorie pertin. And the Judgment on Demurrer on the Plea was, Ideo, &c. qd. praed. Querens recuperet verſ. praefat Def. terminum ſuum praedict. adhuc ventur' de & in Rectoria horreo & gardino praed. More Damages found than the Plaintiff counts. cum pertin. & damna ſua. And more Damages is found in the return of the Inquiſition, than the Plaintiff counts. And the intire Rectory was not Let, and no Term ſuppoſed in it in the Declaration, but in the ſaid three particulars, and no expreſs Judgment is given for the Tithes and Damages are aſſeſſed for the expulſion of the intire Parſonage, of which there was no complaint. It ſeems its Erroneous, Dyer 258. Plow. 19. 1 Bulſtr. 49. 10 Rep. 117. 3 Cr. 544.

Ejectione Firme was brought againſt four,Againſt Gardian and Infant qd. capiantur. whereof one was an Infant, and appeared by his Guardian, and Verdict was pro Quer. and Judgment againſt them quod capiantur. But no ſuch Judgment ought to be againſt an Infant, and its Error, and Judgment was reverſed, Cr. Jac. 274. Holbrook and Doyle's Caſe.

C. Infant appeared be Attorney One of the Defendants at the time of the Judgment, was within Age, and appeared by Attorney, where it ought to have been by his Guardian, the Judgment being upon Verdict. Per Cur. Its Error; and in regard Damages and Coſts are intire, the Judgment ſhall be reverſed for both, by the Stat. 21 Jac. 13. Judgment ſhall not be Arreſted, for that the Plaintiff in any Ejectione Firme, or in any perſonal Action being under Age did appear by Attorney, and the Verdict did paſs for him.

Judgment was reverſt in Error of a Judgment in C. B. Not ſevering and intire Damages. in not ſevering for what part by number of Acres by Special Verdict, and giving entire Damages to the Plaintiff, 2 Keb. 250. M •• kworth and Thomaſin.

Ejectione Firme was againſt Baron and Feme: Verſus Baron and Feme quod capiantur, tho' the Baron be found Not guilty. On Not guilty pleaded, the Feme was found guilty, and the Baron Not guilty; and the Judgment was againſt Baron and Feme, quod capiantur. This was aſſigned for Error, but the Plaintiff had Judgment, for ſo are all the Preſidents: But in the Writ it was vi & armis, Vi & armis left out in the Declaration. and in the Declaration vi & armis was left out; and for this cauſe Judgment was reverſed, Cro. Car. 406. Mayo's Caſe.

In Ejectione Firme, Writ of Enquiry of Damages, without ſaying, Quod capiatur. if Judgment be given upon Demur, or by Default, or on Non ſum informat for the Plaintiff to recover the Term, but it's awarded that there ſhall be a Writ of Enquiry of Damages, without ſaying, Quod capiatur, this is erroneous; for it may be, he will never enquire of the Damages, and make Retorn of it; and then the Fine due upon the Capiatur will be loſt, 1 Rolls Abr. 769.

Note, On Not guilty pleaded, Iſſue is joyned, and a Special Verdict found, and upon this Verdict Judgment given againſt the Plaintiff, and after the Plaintiff brings a Writ of Error,Plaintiff brings a Writ of Error, and the Judgment is reverſed. What Judgment he ſhall have. and in this the Judgment is reverſed, the Plaintiff ſhall have Judgment to recover his Term, his Declaration being good, and the Law being for him on the Special Verdict: For the Court which reverſeth the firſt Judgment, ought to give the ſame Judgment which was given in the firſt Suit, 1 Rolls Abr. 774. Omalcowr and Eyres.

Note alſo, If before Judgment the Years of the Leaſe expire, the Plaintiff had Judgment to recover Damages;Before Judgment the Leaſe expires, the Plaintiff ſhall have Judgment for Damages. otherwiſe in Actions where Freehold is to be recovered, Savile 28.