THE
LAW
OF
EJECTMENTS
.
CHAP.
I.
The
Nature
of
the
Action
of
Ejectione
Firme
,
and
of
the
Change
of
Real
Actions
into
Ejectments
.
Difference
between
an
Action
of
Trespass
and
Ejectment
in
Five
Diversities
.
Difference
between
Ejectione
Firme
and
Quare
Ejecit
infra
Terminum
;
in
what
Court
this
Action
is
to
be
brought
or
not
,
and
of
Removal
by
Procedendo
into
inferior
Courts
.
THIS
Action
of
Ejectione
Firme
includes
in
it self
an
Action
of
Trespass
,
as
appears
by
the
Beginning
,
Body
and
Conclusion
of
the
Writ
;
for
the
Writ
begins
thus
:
Si
A.
fecerit
te
securum
de
clamore
suo
prosequendo
tunc
pone
,
&c.
and
so
begins
the
Writ
of
Trespass
.
The
Body
of
the
Writ
of
Ejectione
Firme
is
,
Quare
unum
Messuagium
vi
&
armis
fregit
&
intravit
;
and
all
the
Addition
in
the
Ejectione
Firme
is
,
Et
ipsum
à
firmâ
sua
inde
ejecit
,
&c.
The
Conclusion
of
both
is
,
Et
alia
enormia
ei
intulit
ad
grave
damnum
;
and
the
Trespass
and
Ejectment
are
so
woven
and
intermixt
together
,
that
they
cannot
be
severed
;
and
the
Entry
in
an
Ejectione
Firme
is
,
In
plito
'
Transgressionis
&
Ejectionis
Firme
.
In
6
R.
2.
Tit.
Eject'
Firme
a.
it
is
called
an
Action
of
Trespass
in
its
Nature
.
The
Consequence
of
this
is
,
That
in
this
Action
,
Accord
with
Satisfaction
is
a
good
Plea
.
And
Accord
and
Satisfaction
for
one
shall
discharge
all
the
Trespassers
and
Ejectors
;
and
tho'
the
Term
(
which
is
a
Chattel
Real
)
shall
be
recovered
as
well
as
Damages
,
yet
it
is
a
good
Plea
.
Now
tho'
we
find
few
Titles
of
Ejectione
Firme
in
our
Old
Books
,
yet
it
was
in
use
all
along
;
it
was
used
in
Bracton's
time
,
and
,
Term
and
Damages
were
recovered
therein
.
In
tempore
H.
3.
he
saith
,
Si
quis
ejiciatur
de
usu
fructu
vel
habitatione
alicujus
tenementi
quod
tenuit
ad
terminum
annorum
ante
terminum
suum
,
there
the
Lessee
shall
have
a
Writ
of
Covenant
against
his
Lessor
;
and
against
his
Vendee
he
shall
have
a
Quare
Ejecit
infra
Terminum
;
and
as
well
against
the
Lessor
as
a
Stranger
,
an
Ejectione
Firme
.
But
this
Action
came
to
be
more
frequent
in
my
Lord
Dyer's
time
,
as
may
appear
by
his
Complaint
in
Court
when
he
was
Lord
Chief
Justice
of
the
Common
Pleas
;
Ejectione
Firmes
.
which
also
gives
us
the
Reason
of
the
change
of
Real
Actions
into
Ejectments
;
All
Actions
(
saith
he
)
almost
which
concern
the
Realty
,
are
determined
in
the
King's
Bench
by
Writs
of
Ejectione
Firme
,
whereby
the
Judgment
is
,
quod
recuperet
Terminum
,
and
by
that
they
are
soon
put
into
Possession
.
And
therefore
in
a
Formed●n
it
was
prayed
by
Council
that
they
might
proceed
without
Essoyns
,
and
feint
Delays
,
because
the
Plaintiff's
Title
appeared
,
which
my
Lord
Dyer
granted
,
Because
(
said
he
)
this
Court
is
debased
and
lessened
,
and
the
King's
Bench
doth
increase
with
such
Actions
which
should
be
sued
here
,
for
the
speed
which
is
there
:
And
(
continued
he
)
no
Action
in
Effect
is
brought
here
,
but
such
Actions
as
cannot
be
brought
there
,
as
Formedons
,
Writs
of
Dower
,
and
the
like
.
And
it
is
my
Lord
Chief
Justice
Hale's
Observation
in
his
Preface
to
Rolls's
Abridgment
:
The
Remedy
by
Assises
and
several
Forms
and
Proceedings
relating
thereunto
,
were
great
Titles
in
the
Year-Books
;
and
altho'
the
Law
is
not
altered
in
relation
to
them
,
yet
Use
and
common
Practice
hath
in
a
great
measure
antiquated
the
use
of
them
by
recovering
Possessions
,
and
the
Remedy
by
Ejectione
Firme
used
instead
thereof
.
So
that
rarely
is
any
Assise
brought
,
unless
for
recovering
Possesion
of
Offices
.
And
so
of
Real
Actions
,
as
Writs
of
Right
and
Writs
of
Entry
,
which
are
seldom
brought
,
unless
in
Wales
,
by
a
Quod
ei
deforceat
.
But
now
the
Entry
of
him
that
hath
right
being
lawful
,
Men
choose
to
recover
their
Possessions
by
Ejectione
Firme
.
But
there
was
a
new
way
invented
to
try
Titles
of
Land
in
personal
Actions
,
but
was
not
allowed
,
as
in
Jeremy
and
Simson's
Case
,
16
Car.
2.
B.
R.
It
was
moved
for
Tryal
at
Bar
on
a
feigned
Action
on
the
Case
,
upon
a
Wager
by
Agreement
of
Parties
,
to
have
the
Opinion
of
the
Court
of
the
Validity
of
a
Will
;
but
tho'
the
Action
was
laid
in
Middlesex
,
yet
being
an
Innovation
,
and
the
way
to
subvert
Ejectione
Firme's
,
which
have
subverted
the
Formedons
,
and
it
sufficiently
appearing
feigned
on
the
Record
,
in
that
the
Title
of
Land
is
hereby
to
be
tryed
in
personal
Actions
,
it
was
totally
denied
;
but
had
it
been
by
direction
of
Chancery
,
the
Court
would
do
it
,
but
would
in
no
wise
grant
this
.
It
was
said
by
Ellesmere
Lord
Chancellor
,
that
until
the
14.
H.
7.
it
was
never
known
that
a
Possession
was
removed
by
an
Action
of
Ejectione
Firme
,
and
said
,
It
was
great
pity
it
was
allowed
at
this
day
for
Law
in
England
;
and
therefore
was
of
Opinion
,
That
an
Action
of
Trespass
Quare
clausum
fregit
,
was
much
better
to
try
the
Title
than
an
Ejectione
Firme
.
1.
Because
no
Possession
was
removed
by
the
one
.
2.
Because
a
Man
may
so
plead
in
an
Action
of
Trespass
,
as
that
he
may
make
the
Plaintiff
disclose
his
Title
;
whereas
by
his
Ejectione
Firme
it
is
no
more
than
Non
culp
'
,
and
then
a
Trial
,
and
so
out
of
Possession
without
more
business
,
which
,
he
said
,
was
a
Pick-pocket
Action
.
Ex
M.
S.
3
Leon
,
p.
49.
This
Action
is
grounded
on
two
Things
,
(
videlicet
)
the
Lease
and
the
Ejectment
.
It
was
well
observed
in
Eyres
and
Banister's
Case
,
Meor
Rep.
418.
That
Ejectione
Firme
in
former
times
was
not
thought
to
be
an
Action
which
concerned
the
Lessor
,
but
only
the
proper
Interest
of
the
Lessee
;
but
now
of
late
times
it
is
put
in
ure
by
the
Experience
of
the
Judges
and
all
others
,
that
an
Ejectione
Firme
is
the
Suit
of
the
Lessor
,
and
the
Lease
made
only
to
try
his
Title
,
and
to
recover
the
Possession
to
him
,
and
the
Suit
is
prosecuted
at
his
Charge
,
and
his
Lessee
is
but
his
Instrument
to
this
purpose
;
and
all
this
to
avoid
the
Charge
and
Delay
of
a
Real
Action
,
and
the
Peril
of
being
barred
by
a
single
Verdict
.
And
Partridge
and
Strainge's
Case
,
Plo.
78.
was
cited
for
the
purpose
;
if
one
being
out
of
Possession
above
a
year
,
makes
a
Lease
for
years
,
this
is
Maintenance
within
the
Stat.
32
H.
8.
and
the
Lessor
and
the
Lessee
shall
lose
the
Value
of
the
Land
;
but
if
such
a
Person
be
at
this
day
possest
of
such
a
Lease
to
try
the
Title
,
and
not
by
Contract
,
that
the
Lessee
shall
hold
the
Land
,
this
is
no
Maintenance
,
as
hath
been
resolved
in
B.
C.
B.
R.
and
Star-Chamber
.
But
for
the
better
understanding
the
nature
of
this
Action
,
I
shall
shew
wherein
it
differs
from
an
Action
of
Trespass
and
a
Quare
Ejecit
infra
Terminum
;
for
tho'
,
as
was
observed
before
,
it
is
in
a
sort
a
Trespass
,
yet
it
differs
from
it
in
several
Things
.
In
Trespass
Damages
are
only
to
be
recovered
,
Ejectione
Firme
the
Thing
or
Term
it self
is
to
be
recovered
as
well
as
Damages
:
And
from
hence
another
difference
is
observable
in
respect
of
Certainty
.
If
in
Trespass
the
Plaintiff
declares
in
one
Acre
,
and
abutts
it
,
and
the
Jury
find
him
guilty
in
dimidio
Acrae
praedict
'
,
or
in
one
Foot
of
it
,
this
is
good
,
tho'
the
Moiety
is
not
bounded
;
they
have
found
the
Trespass
in
the
Moiety
of
the
Acre
bounded
,
and
this
sufficeth
●n
this
Action
where
Damages
are
only
to
be
recovered
:
But
if
it
were
in
Ejectione
Firme
it
had
been
ill
;
for
it
is
not
certain
in
what
part
the
Plaintiff
shall
have
his
Habere
fac'
possessionem
.
And
from
this
Diversity
it
is
,
that
if
an
Ejectione
Firme
be
brought
against
two
Defendants
,
the
one
confesseth
the
Action
,
and
the
other
pleads
in
Bar
,
Not
guilty
,
the
Plaintiff
cannot
release
his
Suit
as
to
one
of
the
Defendants
,
and
proceed
against
the
other
;
but
in
Trespass
in
such
Case
he
may
,
because
this
Suit
is
only
in
point
of
Damages
.
Yelv.
114.
Winckworth
and
Man
.
2
Bulstr.
53.
Ejectione
Firme
if
the
Plaintiff
hath
not
a
Title
according
to
his
Declaration
,
he
cannot
recover
,
whether
the
Defendant
hath
Title
or
not
,
as
was
Cotton's
Case
.
An
Infant
leaseth
Land
to
C.
at
will
▪
who
entred
and
ousted
S.
who
thereupon
brought
an
Ejectione
Firme
,
on
a
special
Verdict
no
Title
appeared
to
be
in
the
Plaintiff
,
and
it
was
objected
against
the
Lease
at
will
,
because
it
was
made
by
an
Infant
,
and
no
Rent
reserved
upon
it
,
nor
the
Lease
made
upon
the
Land
,
and
therefore
the
Lessee
should
be
a
Disseisor
Per
Cur'
be
the
Defendant
a
Disseisor
or
not
,
it
s
not
material
here
,
for
if
the
Plaintiff
hath
not
Title
according
to
his
Declaration
,
he
cannot
recover
;
and
it
is
not
like
to
Trespass
,
where
the
very
Possession
without
other
Title
,
is
good
.
1
Leon
,
215.
Cotton's
Case
.
Naked
Colour
is
not
sufficient
in
Ejectione
Ejectione
Firme
,
and
why
.
Firme
,
as
it
is
in
Trespass
;
therefore
if
the
Plaintiff
make
Title
in
Ejectment
,
this
Title
of
the
Plaintiff
ought
of
necessity
to
be
answered
(
viz.
)
either
by
matter
of
Fact
,
or
in
Law
,
which
confesseth
and
avoideth
the
Title
,
or
traverseth
it
:
For
a
naked
Colour
in
this
Action
is
not
sufficient
,
as
it
is
in
Assise
or
Trespass
,
which
comprehend
not
any
Title
or
Conveyance
in
the
Writ
or
Count
,
as
this
Action
does
in
both
;
and
in
Godb.
159.
in
this
Action
a
Man
shall
not
give
Colour
,
because
the
Plaintiff
shall
be
adjudged
in
by
Title
.
Dyer
,
366.
Godb.
159.
Piggot
and
Goddet's
Case
.
Allowance
of
Conisance
of
Franchise
in
Ejectione
Firme
,
unless
the
Franchise
had
Conusance
of
all
Pleas
,
as
was
adjudged
in
the
Case
of
the
Bishop
of
Ely
,
Ter.
P.
18
Car.
2.
B.
R.
In
Clerks
Case
the
Venire
fac
'
was
ad
faciend
'
juratam
in
Placito
Transgressionis
,
where
it
should
have
been
in
Placito
Transgressionis
&
Ejectionis
Firme
,
and
the
Court
would
not
amend
it
:
For
though
Ejectione
Firme
be
but
a
Plea
of
Trespass
in
its
Nature
,
yet
the
Actions
are
several
,
and
therefore
the
Venire
fac
'
ought
to
be
accordingly
.
Cr.
El.
622.
Clerk's
Case
.
Ejectione
Firme
against
two
Defendants
,
one
pleads
Not
guilty
,
the
other
pleads
,
the
Plaintiff
replies
,
and
so
Demurrer
;
no
Judgment
shall
be
given
on
the
Demurrer
,
till
the
Issue
be
tried
;
for
in
this
Action
the
Possession
of
the
Land
is
to
be
recovered
,
and
it
may
be
for
any
thing
that
appeareth
he
who
pleads
the
General
Issue
,
has
Title
to
it
;
but
if
it
had
been
an
Action
of
Trespass
,
and
the
Plaintiff
will
release
his
Damages
on
the
Issue
joyned
,
he
shall
have
Judgment
against
the
other
.
2
Leon.
199.
Drake
and
Monday
.
Trespass
is
deins
Stat.
21
Jac.
which
names
Trespass
generally
,
but
Ejectment
is
not
,
1
Keb.
295.
Power
's
Case
.
The
Plaintiff
declares
in
Trespass
in
one
Acre
,
and
abutts
it
,
the
Jury
find
him
guilty
in
dimidio
Acre
praed
'
,
this
is
good
;
but
if
it
were
in
Ejectione
,
the
Verdict
had
been
ill
;
for
it
is
not
certain
in
what
part
the
Plaintiff
shall
have
his
Habere
fac'
possessionem
,
Yelv.
114.
Ejectione
Firme
and
Trespass
of
Battery
were
both
in
one
Writ
,
Note
.
Ejectione
and
Trespass
for
Battery
,
both
one
Writ
.
and
upon
Not
guilty
,
Verdict
was
given
for
the
Plaintiff
both
for
the
Ejectment
and
for
the
Battery
,
and
intire
Damages
.
Q.
of
the
Judgment
;
for
the
Damages
for
the
Battery
could
not
be
released
,
because
they
were
entire
with
the
Ejectment
,
Hob.
249.
Bird
and
Snell
.
Ejectione
Firme
against
a
Baron
and
Feme
,
which
are
but
one
Person
in
Law
,
yet
if
the
Baron
dies
,
the
Suit
shall
proceed
against
the
Wife
;
for
it
is
in
the
nature
of
a
Trespass
,
Hardr.
161.
Of
the
Difference
between
Ejectione
Firme
and
Quare
ejecit
infra
Terminum
.
Ejectione
Firme
lies
against
the
immediate
Ejector
,
but
Quare
ejecit
lies
against
him
who
has
Title
,
as
against
him
in
Reversion
,
7
H.
4.
6.
b.
Ejectione
Firme
is
vi
&
armis
,
the
other
is
not
.
Quare
ejecit
infra
Terminum
lies
against
him
who
is
in
by
Title
,
as
against
the
Vendee
of
the
Lessor
,
but
Ejectione
Firme
is
against
him
that
is
the
wrong
Doer
.
In
Ejectione
Firme
if
the
Term
expire
hanging
the
Action
,
this
shall
not
abate
the
Writ
,
but
the
Plaintiff
shall
have
Judgment
for
his
Damages
;
aliter
in
Quare
ejecit
infra
Terminum
.
Note
,
No
Ejectione
Firme
was
brought
against
a
Stranger
before
14
,
H.
7.
At
Common
Law
the
Lessee
had
no
Action
but
of
Covenant
against
his
Lessor
or
Ejectione
Firme
.
The
Quare
ejecit
infra
Terminum
is
given
by
the
Stat.
W.
2.
c.
24.
for
Recovery
of
his
Term
against
the
Feoffee
;
for
Ejectione
Firme
lies
not
against
him
,
because
he
came
to
the
Land
by
Title
of
Feoffment
,
〈…〉
In
what
Court
this
Action
is
to
be
brought
,
or
not
,
and
of
Removal
by
Procedendo
to
an
Inferiour
Court
.
It
lies
in
B.
R.
and
Banco
Communi
.
It
lies
in
the
Exchequer
,
and
for
a
Party
priviledged
by
Bill
,
1
Rep.
3.
Pelham's
Case
.
Note
,
Where
the
King's
Revenue
is
concerned
,
the
Ejectment
ought
to
be
brought
in
the
Exchequer
,
Ejectione
Firme
was
brought
in
the
Exchequer
by
Garroway
against
R.
T.
upon
an
Ejectment
of
Lands
in
Wales
,
and
it
was
maintainable
as
well
as
Intrusion
on
Lands
in
Wales
upon
the
King
himself
.
Upon
Ejectment
brought
in
the
Court
of
Common
Pleas
by
the
Defendant
in
the
Exchequer
,
the
Plaintiff
moved
that
the
Action
might
be
laid
in
the
Exchequer
,
because
his
Title
was
under
an
Extent
out
of
this
Court
for
Debts
in
Aid
;
and
so
it
was
ordered
,
Hardr.
p.
193.
Sir
Ralph
Banks
and
Sir
Tho.
Bennet
.
Hardr.
p.
176.
Hammond's
Case
.
Godb.
1.
296.
Case
416.
This
Action
lies
not
in
the
Marshalsea
,
10
Rep.
72.
It
lies
in
the
Court
of
Ancient
Demesne
,
Ejectione
Firme
brought
above
,
Ancient
Demesne
is
a
good
Plea
.
Vid.
infra
Tit.
Pleading
.
5
Rep.
105.
Alden's
Case
.
Ejectione
Firme
depends
in
B.
G.
B.
the
Plaintiff
may
bring
a
new
Ejectment
in
B.
R.
aliter
of
the
Defendant
.
C.
and
a
special
Verdict
is
found
.
The
Plaintiff
may
bring
a
new
Ejectment
in
the
King's
Bench
,
and
it
shall
not
abate
,
for
it
's
no
Inconvenience
to
any
Person
,
the
same
being
Plaintiff
here
and
there
;
but
if
the
Verdict
had
been
for
the
Defendant
in
the
Common
Bench
,
then
the
Plaintiff
cannot
bring
a
new
Action
in
B.
R.
till
Possession
be
given
in
Baneo
Communi
according
to
the
Verdict
,
Tr.
17
Car.
2.
B.
R.
Shepard
and
Griffith
.
By
Twisden
in
Crisp
and
Jackson's
Case
,
Ventr
.
p.
59.
Tr.
B.
R.
that
in
every
Action
of
Trespass
and
Ejectment
to
be
brought
after
that
time
in
the
King's
Bench
,
if
the
Land
did
lie
in
the
County
of
Middlesex
,
then
a
Bill
of
Middlesex
should
be
brought
;
and
if
the
Lands
lay
in
London
,
then
a
Writ
of
Laitat
should
be
taken
out
against
the
casual
Ejector
named
Defendant
in
every
such
Action
.
If
Ejectione
Firme
be
removed
from
an
Inferior
Court
by
Habeas
Corpus
into
the
King's
Bench
,
it
is
not
removable
by
Procedendo
to
a
Franchise
,
as
Oxon
,
Pole
,
Canterbury
,
&c.
which
only
hold
Plea
of
personal
Actions
,
but
in
this
Action
he
shall
recover
Possession
,
and
have
a
Writ
of
Habere
fac'
possessionem
,
and
thereby
he
that
hath
a
Freehold
may
be
put
out
of
Possession
.
And
in
Sabin's
Case
M.
13
Car.
2.
B.
R.
Ejectione
Firme
was
brought
in
the
City
and
County
of
Canterbury
,
B.
R.
and
removed
into
the
King's
Bench
by
Habeas
Corpus
,
and
a
Procedendo
was
prayed
;
but
because
Bail
was
put
in
in
B.
R.
the
Court
denied
the
Procedendo
,
because
they
were
thereby
seised
of
the
Cause
,
Cro.
Car.
87.
Halley's
Case
.
M.
13
Car.
2.
B.
R.
Sabin's
Case
.
Siderfin
,
p.
231.
Now
in
such
Cases
of
Franchises
,
as
Canterbury
,
Oxon
,
the
Cinque-Ports
,
&c.
they
suppose
the
Lease
elsewhere
in
the
County
,
But
the
reason
why
the
Court
denied
a
Procedendo
in
Allen
and
Burney's
Case
,
was
because
the
Plaintiff
below
had
not
actually
sealed
a
Lease
,
as
he
ought
to
have
done
,
being
an
Inferiour
Court
,
M.
18
Car.
2
B.
R.
Allen
and
Burney
.
Action
was
brought
in
the
Court
of
the
Marches
of
Wales
in
nature
of
Ejectione
Firme
,
Rolls
Rep.
309.
CHAP.
II.
Who
shall
have
Ejectione
Firme
,
and
in
what
Cases
this
Action
lies
,
or
not
,
in
respect
of
Possession
,
in
respect
of
Entry
congeable
,
in
respect
of
Exility
of
Estate
.
By
Lessee
of
Copyhold
,
and
how
,
and
whether
before
Admittance
,
and
the
manner
of
declaring
.
Of
Ejectment
by
Executors
.
Infant-Lessee
of
Simonist
.
On
Elegit
.
On
undue
Extent
,
and
in
case
of
holding
over
.
By
Intruder
,
by
the
King's
Lessee
,
by
a
Person
Outlawed
,
by
Lessee
of
Bail
on
Extent
,
by
Judgment
against
the
Principal
,
by
Issue
in
Tail
liable
to
a
Statute
,
who
comes
not
in
and
pleads
to
the
Sc'
fac'
,
on
Entry
if
the
Grantee
of
Rent
with
Proviso
for
Retainer
till
Satisfaction
of
Arrears
;
by
Cesty
que
Trust
;
by
Vendee
of
Commissioners
of
Bankrupt
.
THE
next
to
be
handled
,
is
,
In
what
Cases
this
Action
lies
,
and
in
what
not
;
whereby
the
Reader
may
be
so
well
informed
,
as
not
to
hazard
his
Client's
Cause
,
and
his
own
Reputation
.
Note
,
If
the
Heir
bring
an
Ejectment
,
and
the
Ancestor
dies
subsequent
to
the
Action
,
he
shall
not
recover
,
because
every
one
shall
recover
only
according
to
the
Right
which
he
hath
at
the
time
of
the
bringing
his
Action
,
in
Wedywood
and
Bayley's
Case
,
Raym.
463.
It
has
been
laid
down
for
a
constant
Rule
in
our
Books
,
Ejectione
Firme
,
but
he
ought
to
have
actual
Possession
at
the
time
of
the
Ouster
,
as
if
Tenant
for
years
makes
a
Lease
at
will
,
and
the
Tenant
at
will
is
ejected
;
the
Question
was
in
Stone
and
Grubham's
Case
,
1
Rolls
Rep.
3.
if
the
Tenant
for
years
for
this
Ejectment
of
his
Lessee
at
will
shall
have
an
Ejectione
Firme
,
and
it
was
resolved
that
he
should
not
.
So
if
Lessee
for
years
be
the
Remainder
for
years
,
the
Lessee
for
years
is
ousted
,
his
Term
expires
,
he
in
Remainder
for
years
cannot
have
an
Ejectione
Firme
,
because
he
had
no
actual
Possession
at
the
time
of
the
Ejectment
.
So
if
a
Lease
for
years
be
made
,
and
before
the
Lessee
enters
,
a
Stranger
enters
,
he
shall
not
have
this
Action
.
And
upon
this
Reason
of
Law
it
is
,
that
by
the
new
Rule
of
Practice
,
the
Defendant
shall
confess
Entry
and
Ouster
;
but
it
has
been
resolved
,
That
if
Inquisition
upon
Elegit
be
found
,
the
Party
before
Entry
hath
the
Possession
,
and
a
Fine
with
Nonclaim
shall
bar
his
Right
;
for
before
actual
Entry
he
may
have
Ejectione
Firme
or
Trespass
,
and
it
is
not
like
to
an
Interesse
Termini
.
In
Smith
and
Rawlin's
Case
no
Entry
was
proved
to
be
by
Dean
and
Chapter
since
1631.
yet
in
regard
Rent
had
been
actually
paid
,
there
the
Lessee
may
bring
Ejectment
(
without
any
Lease
actually
sealed
on
the
ground
.
)
2
Keb.
127.
Smith
and
Rawlins
.
Possession
of
the
Lessor
of
the
Plaintiff
must
appear
to
be
within
Twenty
years
,
though
the
special
Verdict
be
on
another
Point
;
so
Keb.
364.
but
32
H.
8.
c.
2.
extends
not
to
Common
;
but
the
Reversion
in
the
King
will
priviledge
the
Lessor
of
the
Plaintiff
being
but
a
Lessee
for
ninety
nine
years
against
such
want
of
Possession
,
3
Keb.
681.
M.
28
Car.
2.
B.
R.
Piggot
and
the
Lord
Salisbury
.
Lessee
for
years
shall
only
have
this
Action
,
N.
B.
120.
F.
He
whose
Entry
is
not
congeable
by
Law
,
Ejectione
Firme
,
as
in
case
of
a
Formedon
in
Remainder
and
Discontinuance
.
Lessor
grants
the
Reversion
to
A.
Lessee
Attorns
,
A.
ousts
him
,
Lessee
shall
have
Ejectione
Firme
,
N.
B.
221.
a.
1
H.
5.
3.
pl.
3.
The
Action
of
Ejectment
is
maintainable
,
if
it
appear
by
special
Verdict
,
that
any
former
Lease
made
by
the
Lessor
que
&c.
be
in
force
,
1
Rep.
153.
Rector
of
Chedington's
Case
.
How
Copyholder
or
his
Lessee
shall
bring
an
Ejectment
,
Lessee
of
a
Copyholder
for
one
year
shall
maintain
Ejectione
Firme
,
in
as
much
as
his
Term
is
warranted
by
the
Law
,
by
force
of
the
general
Custom
of
the
Realm
;
and
it
's
but
Reason
,
if
he
be
ejected
,
that
he
shall
have
an
Ejectione
Firme
;
and
it
's
a
speedy
course
for
a
Copyholder
to
have
Possession
of
the
Land
against
a
Stranger
;
but
in
the
Guardian
of
the
Monastery
of
Otlery's
Case
cited
,
it
was
objected
,
That
if
Ejectment
be
maintainable
by
Lessee
of
a
Copyholder
(
as
it
was
adjudged
in
B.
Cr.
Eliz.
676
,
717.
Erithe's
Case
.
Moor
,
709.
Stoner
and
Gibson
.
Leon.
p.
118.
The
Lessor
for
years
of
a
Copyhold
which
is
made
without
Licence
of
the
Lord
,
Ejectione
Firme
,
because
he
is
Lessee
against
all
but
the
Lord
;
and
the
Lease
is
good
between
the
Lessor
and
Lessee
,
and
against
all
Strangers
,
but
not
against
the
Lord
;
and
so
in
Hardres's
Rep.
p.
330.
The
Lease
of
a
Guardian
or
Copyholder
,
will
maintain
the
Declaration
in
Ejectment
,
though
void
,
against
the
Lord
and
Infant
.
And
therefore
Jackson
and
Neale's
Case
in
Cro.
El.
394.
seems
not
to
be
Law
,
which
was
;
The
Licence
to
a
Copyholder
was
to
lett
for
twenty
one
years
from
Michaelmas
last
past
,
he
makes
a
Lease
for
twenty
one
years
to
begin
at
Christmas
following
,
to
the
Plaintiff
,
who
entred
,
and
being
ousted
by
the
Defendant
,
brings
an
Ejectione
Firme
;
the
Court
was
of
Opinion
,
That
the
Lease
not
being
warranted
by
this
Licence
,
no
Ejectione
Firme
lies
upon
it
.
But
in
Petty
and
Evans's
Case
,
in
Ejectione
Firme
brought
by
the
Lessee
of
a
Copyholder
,
In
Ewer
and
Astwick's
Case
it
was
doubted
by
the
Court
(
and
so
in
several
other
Cases
in
former
times
)
Whether
the
Plaintiff
in
his
Declaration
ought
to
set
forth
the
Custom
of
the
Manor
that
the
Copy-holder
may
Lease
,
Leon.
p.
100.
It
has
likewise
been
a
Question
,
Ejectione
Firme
by
Copyholder
before
Admittance
or
Presentment
,
and
where
not
without
Admittance
.
Whether
one
ought
to
be
admitted
before
he
can
maintain
this
Action
;
but
it
is
resolved
in
Rumney
and
Eve's
Case
,
if
customary
Lands
do
descend
to
the
younger
Son
by
Custom
,
and
he
enters
,
and
leaseth
it
to
another
,
who
takes
the
Profits
,
and
after
is
ejected
,
that
he
shall
have
an
Ejectione
Firme
,
without
any
Admittance
of
the
Lessor
,
or
without
any
Presentment
that
he
is
Heir
,
1
Leon.
p.
101.
Rumney
and
Eves
,
Pop.
38
Bullock
and
Dibler
.
But
a
Copyholder
Mortgagee
must
be
admitted
before
he
bring
this
Action
,
Ejectione
Firme
may
be
brought
by
per
Stat.
4.
Ed.
4.
c.
6.
which
gives
an
Action
for
Goods
taken
out
of
the
Possession
of
the
Testator
;
the
Reason
is
,
because
it
is
to
recover
the
Term
it self
,
7
H.
4.
6.
b.
2
Ventr
.
p.
30.
If
a
Man
ousts
the
Executors
of
his
Lessee
for
years
of
their
Term
,
they
may
have
a
special
Action
on
the
Case
,
or
they
may
have
Ejectione
Firme
or
Trespass
,
4
Rep.
95.
a.
Reg.
97.
N.
B.
92.
In
Ejectment
the
Plaintiff
was
an
Infant
at
the
time
of
the
Bill
purchased
,
per
Cur
'
,
it's
erroneous
,
and
Error
en
fait
,
Cro.
Jac.
p.
5.
Rew
and
Long.
Deprivation
in
the
Spiritual
Court
for
Symony
,
per
H.
Windham
Buck's
Lent
Assises
,
1668.
Dr.
Crawley's
Case
.
In
Jefferson
and
Dawson's
Case
Council
pray'd
,
per.
Cur'
actual
Possession
ought
not
to
be
delivered
;
but
if
it
be
,
it
's
remediless
;
and
yet
before
Entry
the
Plaintiff
for
whom
the
Inquisition
is
found
,
Ejectione
Firme
be
for
actual
Entry
on
Elegit
.
has
Possession
,
and
before
actual
Entry
he
may
have
Ejectione
Firme
,
and
is
not
like
to
an
Interesse
Termini
,
M.
25
Car.
2.
B.
R.
In
some
Cases
Remedy
against
an
undue
Extent
may
be
by
Ejectment
;
Intruder
on
the
King's
Possession
,
Ejectione
Firme
,
tho'
he
may
have
an
Action
of
Trespass
against
a
Stranger
;
Hardress
,
p.
460.
Friend
and
the
Duke
of
Richmond
.
If
a
Stranger
entreth
upon
the
King
's
Fermor
,
by
such
Entry
he
hath
gained
the
Estate
for
years
;
and
if
he
doth
make
a
Lease
to
another
,
his
Lessee
may
maintain
Ejectione
Ferme
.
A
Lessee
may
have
Ejectione
Firme
,
tho'
the
Reversion
be
in
the
King
.
So
that
it
seems
the
Ejector
by
his
Entry
hath
gained
the
Land
,
2
H.
6.
6.
Dyer
116.
b.
3
Leon.
p.
206.
The
Lessee
of
the
King
may
bring
Ejectione
Firme
,
He
entred
and
expulsed
him
,
Cr.
El.
331.
Lee
and
Morris
.
It
's
said
in
Leonard
,
1
part
212.
Lessee
of
Tenant
in
Common
of
one
Moiety
,
Ejectione
Firme
against
the
Lessee
of
his
Companion
.
J.
Per
Cur
'
,
she
hath
overpast
her
time
,
and
cannot
enter
;
for
then
she
should
prejudice
her
other
Sisters
,
so
as
they
should
never
levy
their
Portions
,
Cr.
El.
809.
Blackbourn
and
Lassells
.
A
Person
outlawed
may
bring
Ejectione
Firme
:
If
a
Man
ousts
the
Executors
of
his
Lessee
for
years
of
their
Term
,
Ejectione
Firme
or
Trespass
,
4.
Rep.
95.
a.
Reg.
97.
N.
B.
92.
One
seised
of
Lands
in
Fee-Simple
,
B.
R.
and
after
Issue
joyned
,
let
the
Land
to
B.
the
Plaintiff
;
Judgment
is
afterwards
given
against
the
Principal
,
and
an
Extent
taken
upon
the
said
leased
Lands
,
B.
the
Plaintiff
being
thereupon
ousted
,
brings
this
Action
of
Ejectione
Firme
,
Crok
.
Jac.
449.
Kervile
and
Brokest
.
Tenant
for
life
,
Sc'
fac
'
retorned
,
and
he
comes
not
in
and
pleads
,
he
shall
not
bring
his
Ejectment
.
Remainder
to
his
Issue
in
Tail
;
Tenant
for
life
enters
into
a
Stat'
and
dies
,
Conisee
sues
a
Scire
fac
'
against
his
Heir
,
who
was
Issue
in
Tail
,
and
the
Sheriff
retorns
Scire
feci
;
and
upon
this
,
Execution
without
any
Plea
pleaded
by
the
Heir
,
and
the
Heir
being
ousted
by
the
Execution
,
brought
Ejectione
;
Per
Cur
'
,
the
Heir
shall
be
bound
by
this
Execution
,
and
he
has
no
Remedy
,
neither
by
Ejectment
,
Writ
of
Error
,
nor
by
Aud
'
Querela
,
nor
by
any
other
way
,
but
against
the
Sheriff
,
if
he
have
made
a
faux
Retorn
of
the
Scire
fac'
,
Siderfin
,
p.
55.
Day
and
Guilford
.
Rent
granted
with
a
Proviso
,
Ejectione
Firme
,
Siderfin
,
p.
223.
Jemot
and
Cowley
.
1
Roll.
784.
2
Keb.
20.
mesme
Case
.
Cro.
Jac.
511.
Havergell
and
Hare
.
Hill.
13
Jac.
B.
C.
Rot.
868.
Brown
and
Hagger
cited
in
Price
and
Vaughan's
Case
,
is
full
in
the
Point
;
and
Trin.
14
Car.
2.
Roll.
2511.
Eyer
and
Malin
.
Ejectment
upon
a
Lease
of
the
Lord
Byron
,
special
Verdict
found
,
Sir
J.
Byren
seised
in
Fee
by
Indenture
,
grants
a
Rent
Charge
for
life
,
to
commence
after
the
Death
of
the
Grantor
;
and
if
the
Rent
be
Arrear
,
that
the
Grantee
may
euter
and
take
the
Profits
without
Account
,
till
the
Rent
and
Arrears
shall
be
paid
.
The
Rent
was
Arrear
,
and
the
Grantee
enters
and
makes
a
Lease
to
the
Plaintiff
;
and
Bridgman
and
the
rest
(
praeter
Browne
)
agreed
for
the
Plaintiff
.
It
was
said
in
the
Case
of
Holmes
and
Bayly
,
Stiles
Rep.
380.
Ejectment
is
brought
by
Cesty
que
Trust.
Vendee
of
the
Commissioners
on
the
Statute
of
Bankrupts
of
Lands
by
Deed
Indented
,
Ejectione
Firme
,
before
Inrollment
of
the
Deed
,
altho'
it
be
inrolled
after
the
Action
brought
:
And
the
Difference
between
this
and
the
case
of
a
common
Bargain
and
Sale
per
Stat.
27
H.
8.
c.
10.
of
Uses
,
is
,
For
there
the
Estate
passeth
by
the
Contract
,
and
the
Use
is
executed
by
the
Statute
;
then
comes
the
Act
of
Inrolments
of
the
same
year
,
and
enacts
,
That
no
Estate
shall
pass
without
Inrolment
,
and
this
within
Six
Months
.
But
the
Commissioners
here
have
not
any
Estate
,
but
only
a
Power
which
ought
to
be
executed
by
the
Means
prescribed
by
the
Statute
,
with
the
Circumstances
there
directed
,
which
is
not
only
by
Deed
indented
,
but
inrolled
also
;
Sir
Tho.
Jones
,
p.
196.
Perry
and
Bowers
.
Note
,
Lessor
of
Tenant
in
Possession
hath
no
Priviledge
in
Ejectment
,
tho'
he
be
a
Lord
of
Parliament
,
unless
he
be
Tenant
in
Possession
himself
,
1
Keb.
329.
CHAP.
III.
Of
Process
in
Ejectione
Firme
.
The
Original
.
What
Mistakes
in
the
Original
are
Error
after
a
Verdict
,
or
not
.
Of
a
vicious
Original
.
Of
the
want
of
an
Original
.
Of
an
Original
taken
out
before
the
Cause
of
Action
.
Where
Amendment
shall
be
by
the
Paper-Book
.
Of
Amendments
of
Originals
,
Stat.
13
Car.
2.
c.
11.
Of
Appearance
.
Infant
,
how
to
appear
,
sue
or
defend
.
The
true
Difference
between
Guardian
and
Prochein
Amy.
Of
want
of
Pledges
.
Of
Bail
.
Of
the
Stat.
13
Car.
2.
c.
2.
Of
Bail
or
Error
.
The
Original
is
thus
.
REX
,
&c.
Vic
Midd
salutem
.
Si
A.
●
.
fecerit
te
securum
tunc
pone
p
〈…〉
pleg
C.
D.
nuper
de
London
〈◊〉
.
Ita
qd
sit
coram
Iusticiariis
nostr
apud
〈◊〉
(
tali
die
)
ad
respondend
W.
●
.
●e
Plito
quare
vi
&
armis
unum
Mess●●g
decem
Aeras
Terre
&
tres
.
Aeras
Pasture
cum
ꝑtinen
in
D.
in
Comit
tuo
que
S.
W.
vid
eid
W.
dimisit
ad
terminum
qui
nondum
preteriit
intravit
&
ipsum
a
Firma
sua
ejecit
,
&
alia
enormia
ei
intulit
ad
grave
damnum
ipsius
W.
&
contra
pacem
nostram
&
Dom
Regis
nunc
,
&c.
T.
&c.
On
the
Retorn
in
B.
R.
quindena
Pasche
ubicunque
.
Writ
,
Process
.
In
Ejectment
upon
a
Demise
by
the
Lord
L.
who
was
no
Peer
,
yet
upon
Non
Culp
'
,
good
,
he
being
the
same
Person
that
did
demise
,
Allen
58.
Bernard's
Case
.
So
you
see
the
Original
Writ
in
C.
B.
in
Ejectment
,
is
an
Attachment
,
or
a
Pone
per
vadios
&
salvos
plegios
,
&c.
and
Summonitus
in
Ejectment
was
held
to
be
an
Error
.
In
Ejectione
Firme
brought
by
Original
Writ
out
of
Chancery
;
ss.
Simo
Edulph
nuper
de
C.
summonit
fuit
ad
respond
Tho.
R.
de
plito
quare
vi
&
armis
,
&c.
And
after
Verdict
pro
Quer
'
,
it
was
moved
,
That
this
was
a
Vicious
Original
,
and
not
aided
by
any
of
the
Statutes
of
Jeofail's
;
for
it
appears
by
the
Entry
of
it
,
that
the
Original
was
a
Summons
,
where
it
ought
to
have
been
an
Attachment
,
which
the
Court
granted
;
but
upon
search
there
was
no
Original
filed
;
per
Cur'
seeing
there
is
no
Original
filed
,
it
shall
be
intended
after
Verdict
,
that
once
there
was
a
good
Original
,
which
is
now
lost
,
and
that
the
Plaintiff's
Clerk
had
mistaken
in
the
Recital
of
it
,
which
after
Verdict
is
not
material
,
Reg.
Orig.
227.
b.
Saunders
Rep.
1.
p.
317.
Redman
and.
Edolph
.
Sider.
423.
mesme
Case
.
2
Keb.
544.
mesme
Case
.
So
in
Jennings
and
Downe's
Case
Error
was
assigned
,
because
that
it
appeared
by
the
Record
that
the
Declaration
was
before
the
Plaintiff
had
any
Cause
of
Action
;
but
the
Council
of
the
other
side
said
,
There
is
a
wrong
Original
certified
,
and
prayed
to
have
a
new
Certificate
to
have
the
true
Original
certified
.
Per
Cur
'
,
Take
it
,
for
it
is
in
Affirmance
of
a
Judgment
,
which
ought
to
be
favoured
.
But
in
John's
and
Steyner's
Case
the
Original
bore
Date
24
Junij
6
Car.
and
the
Ejectment
is
supposed
31
Januarij
:
Per
Cur
'
it's
Error
,
because
the
Original
(
upon
Diminution
alledged
)
was
certified
as
an
Original
in
this
Action
,
which
is
between
the
same
Parties
,
and
of
the
same
Land
,
and
of
the
same
Term
;
and
being
taken
out
before
the
Cause
of
Action
,
it
's
a
vicious
Original
,
not
aided
by
any
Statute
,
Stiles
Rep.
352.
Jennings
and
Downes
.
Cro.
Car.
272
,
281.
Johns
and
Steyner
.
It
's
a
Rule
in
the
Register
,
That
in
the
Writ
of
Ejectione
Firme
there
may
not
be
Bona
&
Catalla
,
because
that
for
Goods
taken
away
a
Man
shall
have
an
Exigend
'
,
and
in
this
Writ
Distress
infinite
,
Plo.
228.
b.
So
was
Johnson
and
Davies's
Case
.
The
Suit
was
by
Original
Writ
,
which
is
of
one
Messuage
,
Sixty
Acres
of
Land
,
Three
hundred
Acres
of
Pasture
;
but
per
Curiam
this
shall
not
be
intended
the
Original
upon
which
the
Plaintiff
declared
,
but
that
there
was
another
Original
which
warranted
the
Declaration
,
which
is
now
imbesilled
;
and
this
want
is
aided
by
the
Statute
of
Jeofayls
,
especially
as
this
Case
is
;
because
the
Writ
is
Teste
18
Apr.
Ret
'
15
Pasch.
&c.
This
Declaration
is
in
Trinity
Term
,
and
here
is
no
Continuance
upon
this
Writ
,
Cro.
Car.
327.
Johnson
and
Davis
.
In
Ejectione
Firme
the
Paper-Book
was
right
,
It
was
an
Exception
in
Haines
and
Strowder's
Case
,
because
the
Suit
was
by
Original
Writ
,
and
the
Clause
(
ostensurus
)
was
not
in
the
Writ
,
Palmer
,
413.
Haines
and
Strowder
.
Godb.
408.
Case
.
Crouch
and
Haines
,
Case
488.
The
Original
was
Teste
the
same
Day
that
the
Ejectment
was
made
,
Roll.
Rep.
352
,
129.
Beaumont
and
Coke
.
As
for
the
Amendment
of
Originals
in
Ejectione
Firme
,
Ex
divisione
for
ex
dimissione
was
amended
;
so
Barnabiam
for
Barnabam
,
and
so
what
appears
to
be
the
Default
of
the
Cursitor
,
1
Brownl.
130.
1
Rolls
Abr.
198.
In
Ejectione
Firme
,
Rolls
Abr.
207.
Leeson
and
West
.
Original
in
Ejectment
was
amended
after
Writ
of
Error
brought
,
as
divisit
for
dimisit
,
2
Ventr.
173.
By
the
Stat.
13
Car.
2.
c.
11.
In
all
personal
Actions
,
and
in
Ejectione
Firme
for
Lands
,
&c.
depending
by
Original
Writ
,
after
any
Issue
therein
joyned
,
and
also
after
any
Judgment
therein
had
and
obtained
,
there
shall
not
need
to
be
Fifteen
Days
between
the
Teste-day
and
the
Day
of
Retorn
of
any
Writ
of
Ven'
fac'
,
Hab'
corpora
jurat'
,
Distringas
jurat'
,
Fieri
facias
or
Capias
ad
Satisfaciend
'
,
and
the
want
of
Fifteen
Days
between
the
Teste-day
and
the
Day
of
Retorn
of
any
such
Writ
,
shall
not
be
assigned
for
Error
.
If
an
Original
in
B.
R.
be
ill
,
Error
upon
it
lies
not
but
in
Parliament
,
Sid.
p.
42.
Action
of
Ejectment
,
and
also
Battery
in
one
Writ
,
and
it
was
moved
in
Arrest
of
Judgment
,
because
Battery
was
joyned
in
Ejectment
,
the
Damages
were
found
severally
,
and
the
Plaintiff
released
the
Damages
for
the
Battery
,
and
prayed
Judgment
for
the
Ejectment
,
and
had
it
;
1
Brownl.
235.
Bide
and
Snelling
.
Of
Appearance
.
If
the
Tenant
in
Possession
do
not
appear
in
due
time
after
the
Declaration
left
with
him
,
In
Ejectment
or
any
other
personal
Action
,
if
the
Defendant
do
appear
upon
the
first
Retorn
in
Hillary
or
Trinity
Term
,
there
can
be
no
Imparlance
without
Consent
or
special
Rule
of
Court
.
In
Actions
real
and
mixt
against
an
Infant
,
he
ought
to
appear
by
Guardian
,
Ejectione
Firme
in
Banco
against
the
Infant
Defendant
upon
a
Verdict
had
against
him
,
was
reversed
for
this
Cause
,
1
Rolls
Abr.
287.
Lewis
and
Johns
.
Ejectione
Firme
was
brought
against
Thomas
the
Father
and
J.
the
Son
;
the
Father
appeared
by
T.
C.
Attornat'
suum
,
and
the
said
J.
per
eundem
T.
C.
proximum
amicum
suum
▪
who
was
admitted
per
Cur'
ad
prosequend'
,
this
is
Error
:
A
Guardian
and
Prochein
Amy
are
distinct
,
Prochein
Amy
may
be
admitted
for
the
Plaintiff
;
and
a
Prochein
Amy
is
appointed
by
W.
1.
c.
47.
W.
2.
c.
15.
in
case
of
Necessity
,
where
an
Infant
is
to
sue
his
Guardian
,
or
that
the
Guardian
will
not
sue
for
him
,
Prochein
Amy.
Want
of
and
therefore
he
is
admitted
to
sue
per
Guardian
or
Prochein
Amy
,
where
he
is
to
demand
or
gain
;
but
when
he
is
to
defend
a
Suit
in
Actions
Real
or
Personal
,
it
always
ought
to
be
per
Gardianum
,
and
the
Guardian
ought
to
be
admitted
per
Cur
'
.
Therefore
the
Defendant
ought
always
to
appear
by
Guardian
,
and
not
by
Prochein
Amy
;
and
also
to
admit
the
Defendant
ad
prosequend
'
,
is
ill
and
preposterous
,
Cro.
Jac.
640.
Maby
and
Shepard
.
Pledges
.
Error
of
a
Judgment
in
C.
B.
in
Ejectione
Firme
assigned
in
1
Cro.
per
Cur'
Omission
of
Pledges
,
or
of
one
,
is
Error
,
tho'
after
a
Verdict
;
and
the
Defendant
after
in
nullo
est
erratum
pleaded
,
may
pray
Diminution
,
which
cannot
be
granted
but
on
Motion
,
and
then
only
to
affirm
the
Judgment
;
yet
when
the
Record
is
come
in
,
it
may
be
made
use
of
to
avoid
the
Judgment
;
and
because
Diminution
was
not
prayed
,
the
Court
conceived
it
cannot
be
assigned
for
Error
,
1
Keb.
278
,
281.
Hodges's
Case
.
Bail
.
In
Ejectment
against
Two
,
one
does
not
put
in
Bail
,
it
is
Error
,
2
Rolls
Abr.
46.
Dennis
Case
.
In
Ejectment
on
Non
Culp
.
pleaded
by
the
Attorney
for
the
Defendant
,
Trespass
is
within
the
Act
of
21
Jac.
which
names
Trespass
generally
,
Note
,
Error
without
Bail
,
is
a
Supersedeas
in
Ejectment
,
notwithstanding
the
new
Act
,
13
Car.
2.
c.
2.
it
being
not
within
the
general
Word
,
Trespass
,
Id.
p.
308.
Lufton
and
Johnson
.
Tr.
B.
R.
ordered
that
Common
Bail
shall
be
filed
for
the
Defendant
before
any
Declaration
by
Bill
in
such
Action
shall
be
delivered
to
the
Tenant
in
Possession
of
the
Lands
in
such
Declaration
contained
,
and
that
if
the
Attorney
for
the
Plaintiff
in
B.
R.
shall
fail
thereof
,
then
no
Judgment
for
the
Plaintiff
shall
be
entred
against
the
casual
Ejector
,
nor
shall
the
Tenant
in
Possession
confess
Lease-entry
and
Ouster
at
the
Trial.
Attorney
was
made
Lessee
in
Ejectment
,
B.
R.
)
and
so
claims
Priviledge
that
the
Defendant
may
answer
him
this
Term
,
or
else
he
will
enter
up
Judgment
against
him
for
want
of
a
Plea
.
Quaere
.
Stiles
Rep.
367.
CHAP.
IV.
Against
whom
Ejectione
Firme
lies
,
or
not
,
and
of
the
casual
Ejector
.
Of
the
old
way
of
Sealing
Leases
of
Ejectment
by
Corporations
;
by
Baron
and
Feme
;
in
what
Cases
now
to
be
used
.
EJectione
Firme
against
one
Simul
cum
,
had
been
ruled
to
be
good
,
and
so
used
in
the
Common
Pleas
,
tho'
heretofore
it
was
adjudged
to
the
contrary
,
Stiles
Rep.
15.
It
lies
against
Baron
and
Feme
,
Lib.
Intr.
253.
9.
Rep.
77.
e.
Peytoe's
Case
.
Plo.
187.
It
lies
against
the
Ejector
or
wrong
Doer
,
be
who
he
will
.
When
the
Course
was
to
seal
an
Ejectment
to
try
a
Title
of
Land
,
Ejectione
Firme
may
be
brought
to
try
the
Title
of
the
Land
in
Question
.
But
he
that
was
to
try
a
Title
of
Land
in
Ejectment
,
ought
not
to
have
made
an
Ejector
of
his
own
,
against
whom
he
might
bring
his
Action
;
or
to
consent
or
agree
with
one
to
come
upon
the
Land
let
in
the
Ejectment-Lease
,
with
an
Intent
to
make
him
an
Ector
,
and
to
bring
his
Action
against
him
;
for
by
that
means
the
Tenant
in
Possession
of
the
Land
,
was
after
put
out
of
Possession
by
a
Writ
of
Habere
fac'
possessionem
,
without
any
Notice
given
to
him
or
his
Lessor
of
the
Suit
;
but
now
the
Law
is
otherwise
,
and
altered
by
the
new
way
of
Practice
.
Note
,
The
Court
said
in
Addison's
Case
,
Mod.
Rep.
252.
That
they
take
no
Notice
judicially
,
that
the
Lessor
of
the
Plaintiff
is
the
Party
interested
,
therefore
they
punish
the
Plaintiff
,
if
he
release
the
Damages
;
but
in
point
of
Costs
they
take
notice
of
him
.
But
before
I
proceed
further
,
Brow
nl
129.
Godb.
72.
Earl
of
Kent's
Case
.
And
first
,
The
way
to
execute
a
Lease
to
try
a
Title
,
the
Land
being
in
many
Men's
Hands
,
was
to
enter
into
one
of
the
Parcels
,
and
leave
one
in
that
place
;
and
then
he
must
go
into
another
,
and
leave
one
there
,
and
so
of
the
rest
;
and
then
after
he
had
made
the
last
Entry
there
,
he
sealeth
and
delivereth
the
Lease
;
and
then
those
Men
that
were
left
there
,
must
come
out
of
the
Land
.
But
when
a
Title
was
to
be
tryed
by
Ejectment
,
and
a
Lease
to
be
executed
by
a
Letter
of
Attorney
,
the
Course
was
,
That
the
Lessor
do
seal
the
Lease
only
,
and
deliver
it
as
an
Escrow
,
and
the
Letter
of
Attorney
,
and
deliver
the
Letter
of
Attorney
,
but
not
the
Lease
;
for
the
Attorney
must
deliver
that
upon
the
Land
.
And
upon
Ejectment
brought
of
Land
in
Two
Villages
,
as
of
an
House
and
Forty
Acres
of
Land
in
A.
and
B.
and
a
special
Entry
in
the
Land
adjoyning
to
the
House
(
viz.
)
the
putting
in
of
an
Horse
which
was
drove
out
of
the
Land
by
the
Defendant
,
this
was
adjudged
a
good
Entry
for
the
Land
in
both
the
Villages
per
totam
Curiam
.
So
of
Lands
in
one
County
,
Palmer
,
402.
Argoll
and
Cheney
.
The
Corporation
of
Mercers
were
seised
of
the
Lands
in
Question
,
Baron
and
Feme
joyn
in
a
Lease
by
Indenture
to
B.
per
Cur
'
,
That
the
Lease
will
not
maintain
the
Declaration
;
for
a
Feme
covert
cannot
make
a
Letter
of
Attorney
to
deliver
a
Lease
of
her
Land
,
but
the
Warrant
of
Attorney
is
meerly
void
;
so
that
this
only
is
a
Lease
of
the
Husband
,
which
is
not
maintained
by
the
Declaration
.
But
Hopkins's
Case
in
Cro.
Car.
165.
is
against
this
,
where
the
Plaintiff
declared
of
a
Lease
made
by
Baron
and
Feme
;
On
Not
guilty
,
it
appeared
on
the
Evidence
,
that
the
Lease
was
sealed
and
subscribed
by
them
both
,
and
a
Letter
of
Attorney
made
by
them
to
deliver
it
upon
the
Land
;
Per
Cur'
it
's
a
good
Letter
of
Attorney
by
them
both
,
and
the
Lease
well
delivered
,
and
it
is
a
Lease
of
them
both
during
the
Husband's
Life
,
Yelv.
Wilson
and
Rich.
2
Brownl.
248.
Plomer's
Case
.
Cro.
Car.
165.
Hopkin's
Case
.
2
Leon.
200.
CHAP.
V.
Of
the
Rule
of
confessing
Lease
,
Entry
and
Ouster
,
and
Rules
of
Court
relating
thereunto
.
Of
Refusal
to
confess
Lease
,
Entry
and
Ouster
,
and
the
Consequence
.
Of
how
much
the
Defendant
shall
confess
Lease
,
Entry
and
Ouster
.
In
what
Cases
there
must
be
an
actual
Entry
,
and
where
it
is
supplied
by
confessing
of
Lease
,
Entry
and
Ouster
.
Rules
concerning
ones
being
made
Defendant
,
and
of
altering
the
Plaintiff
;
and
of
the
Ejectment-Lease
.
HOW
necessary
the
Knowledge
of
this
Practice
is
to
one
who
would
manage
his
Client's
Cause
with
Discretion
and
Success
,
is
sufficiently
apparent
,
and
needs
no
further
Recommendation
.
It
must
be
observed
(
as
was
adjudged
in
the
Mayor
of
Bristol's
Case
)
that
there
,
B.
R.
M.
16
Car.
2.
B.
R.
Where
the
Freeholds
are
several
,
B.
R.
Medlicot's
Case
.
In
Ejectment
the
Ouster
was
confessed
of
a
third
part
of
a
fourth
part
of
a
fifth
part
in
five
parts
to
be
divided
,
which
by
Hide
is
very
inconvenient
,
B.
R.
Cole
and
Skinner
.
In
Ejectment
where
there
are
divers
Defendants
who
are
to
confess
Lease
,
Entry
and
Ouster
,
if
one
doth
not
appear
at
the
Tryal
,
the
Plaintiff
cannot
proceed
against
the
rest
,
but
must
be
nonsuited
,
1
Ventr
.
In
Ejectment
the
Plaintiff
shewed
Copy
of
four
Acres
,
Car.
B.
R.
Hide
and
Preston
.
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
,
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
.
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
,
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
.
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
,
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
,
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
,
In
Ejectment
after
Declaration
and
before
Plea
,
Siderf
.
p.
24.
Note
,
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
.
The
Lease
was
24.
Sept.
Habend
.
from
Michaelmas
next
,
virtute
cujus
the
Plaintiff
entred
,
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
,
Lease
made
to
try
a
Title
in
Ejectment
,
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.
CHAP.
VI.
Of
Declarations
.
Of
what
things
an
Ejectione
Firme
may
be
brought
,
and
what
not
.
General
Rules
of
Declarations
in
Ejectments
.
Variance
between
the
Issue-Roll
and
the
Imparlance-Roll
.
Of
Entry
and
Ejectment
supposed
before
the
Commencement
of
the
Lease
,
virtute
cujus
he
entred
,
how
taken
and
expounded
.
Uncertainty
in
the
Limitation
of
the
Commencement
,
and
no
Day
of
the
Date
shewed
.
Et
postea
,
&c.
how
expounded
.
The
manner
of
Declaring
by
Coheirs
,
by
Tenants
in
Common
,
by
Baron
and
Feme
,
by
Joynt-tenants
,
by
a
Corporation
,
by
Copyholder
,
by
Administrator
.
THE
new
way
of
Tryals
in
Ejectment
by
Confession
of
Lease
,
Entry
and
Ouster
,
and
standing
only
upon
the
Title
,
make
some
Persons
conceive
that
Cases
or
Resolutions
about
Declarations
in
Ejectments
(
whose
Form
is
now
generally
setled
)
to
be
useless
and
antiquated
.
And
in
truth
they
are
so
in
a
great
measure
;
and
yet
notwithstanding
there
are
several
good
Rules
and
Resolutions
,
as
well
relating
to
matters
of
Law
as
Practice
,
and
Forms
,
even
since
the
said
new
Method
has
been
taken
up
,
both
as
to
what
things
an
Ejectment
may
be
brought
,
or
not
,
and
Delivery
,
Entry
,
Variance
,
and
Amendments
of
Declarations
;
as
also
how
Declarations
ought
to
be
,
when
Coparceners
,
Joyntenants
,
Corporations
,
Baron
and
Feme
,
Tenants
in
Common
,
Administrators
,
and
the
like
,
are
concerned
.
And
yet
even
those
former
Cases
and
Resolutions
as
to
the
Commencement
of
Leases
and
Demises
on
which
the
Declaration
is
,
and
the
Dates
and
precise
Times
of
Entry
and
Ouster
,
deserve
well
to
be
considered
;
not
only
as
so
many
curious
Points
of
Law
therein
argued
,
of
which
it
's
not
to
be
thought
a
general
Lawyer
would
be
ignorant
;
but
because
in
Inferiour
Courts
the
old
way
of
delivering
Declarations
,
is
and
must
be
used
.
I
shall
therefore
in
the
first
place
cite
some
of
the
principal
Cases
touching
the
manner
of
declaring
in
former
times
,
as
to
the
Dates
and
Commencement
of
Demises
,
&c.
and
then
come
to
those
Considerations
and
Rules
which
are
of
present
Use
,
both
as
to
Delivery
,
Entry
,
Forms
,
and
the
like
,
in
which
many
Practisers
may
not
be
well
informed
,
and
which
are
founded
upon
late
Resolutions
.
But
first
I
shall
shew
how
Declarations
are
to
be
laid
in
respect
of
the
Matter
and
Things
for
which
the
Ejectment
is
brought
;
concerning
which
the
Cases
in
our
Books
are
very
frequent
,
and
very
useful
to
be
known
.
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
;
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
.
Ejectment
lies
de
uno
Burgo
,
s
Case
.
Ejectment
de
uno
cubiculo
,
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
,
W.
Jones
454.
Sprig's
Case
.
Cro.
Car.
551.
mesme
Case
.
It
is
not
formal
to
bring
Ejectment
de
unâ
Capellâ
,
Ejectment
de
septem
Messuagiis
sive
Tenementis
;
it
's
ill
after
a
Verdict
for
the
uncertainty
,
Cro.
El.
146.
Ejectment
de
uno
Messuagio
sive
tenemento
vocat
'
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
,
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
,
Stiles
p.
258.
Hammond
and
Ireland
.
Cro.
El.
818.
Hill
and
Gibs
.
Ejectione
Firme
lies
de
Pomario
,
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
,
Mod.
Rep.
9.
Fitz
Gerard's
Case
.
In
Palmer
and
Humphrey's
Case
it
was
adjudged
,
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
,
It
was
doubted
by
Rolls
and
the
Court
,
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
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
,
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
.
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't
s
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
,
Cro.
Car.
573.
Martin
and
Nichols
.
Observe
,
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
,
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
,
Ejectment
of
Three
hundred
Acres
of
Waste
,
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
,
Cro.
Car.
362.
Ward
.
Ejectment
lies
of
a
Cole-mine
,
his
petitum
,
1
Rolls
Rep.
55.
Cro.
Jac.
21.
Harbotle
and
Placock
.
It
lies
of
a
Boillary
of
Salt-water
,
of
Salt
.
Siderf.
161.
Ejectment
lies
not
de
rivulo
seu
aquae
cursu
,
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
,
T.
nec
non
de
Libera
Pischaria
infra
Rivulum
de
Trent
in
which
Action
Damages
were
entirely
given
;
Cro.
Jac.
146.
Molineux
.
Ejectment
was
brought
in
Ireland
of
forty
Messuages
,
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
;
per
Cur'
it
's
well
enough
,
and
of
the
same
Sense
;
and
if
not
,
it
is
but
Surplusage
,
as
to
the
Territories
,
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
,
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
;
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
,
Mod.
Rep.
9.
Fitzgerard's
Case
.
Ejectione
Firme
de
una
virgata
terrae
lies
not
,
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
Parco
,
Sid.
417.
It
lies
de
Herbagio
,
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
,
Count
of
the
Moiety
of
two
Acres
of
Land
,
Per
Cur'
Ejectment
lies
de
uno
Stabulo
,
Separalis
Pischaria
usque
ad
filum
aquae
cannot
be
counted
upon
,
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
,
Ejectment
was
laid
on
Demise
at
T.
Of
an
House
and
Land
in
quodam
campo
juxta
le
Castle-hill
.
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
'
,
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
Messuagio
&
Tenement
'
,
it's
ill
after
General
Verdict
,
2
Keb.
80
,
82.
Burbury
and
Yeomans
.
Ejectment
does
not
lie
of
a
Light
house
,
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
.
B.
C.
Ejectment
of
600
Acres
of
Fen-Marsh
,
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
,
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
,
B.
R.
3
Keb.
450.
Hall
and
Johnson
.
Ejectment
of
Moor
or
Meadow
,
Ejectment
lies
not
of
Common
or
Pischary
alone
,
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
.
It
s
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
,
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
,
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
;
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.
It
's
a
sure
Rule
,
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
,
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.
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
,
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
.
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.
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
,
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
;
Quod
cum
J.
H.
by
his
Indenture
bearing
date
the
20th
of
May
,
32
Eliz.
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.
per
Cur'
the
Variance
is
fatal
,
and
the
Plaintiff
was
nonsuited
,
3
Keb.
691.
Smith
and
Talbot
,
M.
18
Car.
2.
Plaintiff
declares
,
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
,
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.
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
,
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
,
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
,
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
,
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
,
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.
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
;
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
,
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
.
CHAP.
VII
.
Where
in
the
Declaration
a
Life
must
be
averred
,
and
where
it
need
not
.
Of
Delivery
of
Declarations
at
or
after
the
Essoyne-day
.
Declurations
when
to
be
entred
,
as
of
the
same
Term
where
the
Copies
need
not
be
paid
for
.
Declarations
,
when
amendable
or
not
.
Of
expressing
the
Vills
where
the
Lands
lie
.
Of
the
Pernomen
.
Declaration
need
not
be
of
more
Acres
than
he
was
ejected
out
of
.
Of
the
Forms
of
the
Declaration
,
Vi
&
Armis
omitted
,
Extr.
tenet
omitted
.
The
President
of
Declarations
in
C.
B.
in
B.
R.
in
Scacario
.
The
Indorsement
on
the
Copy
to
be
left
with
the
Tenant
,
and
what
the
Tenant
is
to
do
thereupon
.
The
Rule
for
confessing
Lease
,
Entry
and
Ouster
in
B.
C.
and
in
B.
R.
IF
one
do
declare
upon
a
Lease
in
Ejectione
Firme
,
and
that
by
Virtue
of
that
Lease
he
was
in
possession
of
the
Lands
thereby
let
to
him
until
that
he
was
ejected
by
the
Defendant
,
it
is
supposed
that
the
Lessor
who
made
the
Lease
to
him
,
was
alive
at
the
time
of
the
Action
brought
,
Pract.
Reg.
110.
The
Plaintiff
in
Ejectment
declared
of
a
Lease
for
three
years
,
if
the
Wife
of
the
Plaintiff
shall
so
long
live
,
and
does
not
shew
that
the
Wife
is
yet
in
Life
;
yet
per
Cur'
this
being
after
a
Verdict
,
is
made
good
by
the
Stat.
21
Jac.
of
Amendments
after
Examination
by
the
Sheriff
.
And
in
Arundel's
Case
,
in
Ejectment
the
Plaintiff
declares
that
the
Lady
Morley
being
only
Tenant
for
life
,
made
a
Lease
to
him
for
three
years
,
if
she
should
so
long
live
;
virtute
cujus
intravit
&
fuit
possessionat
'
until
the
Defendant
entred
upon
him
,
&
illum
à
firma
sua
praedicta
termino
suo
nondum
finito
extratenet
,
&c.
and
he
did
not
averr
the
Life
of
the
Lady
Morley
.
But
per
Cur'
this
amounts
to
an
Averment
;
for
he
saith
his
Term
is
not
yet
ended
,
which
implies
she
is
alive
,
and
the
years
not
expired
;
and
this
was
after
a
Verdict
.
But
had
it
been
demurred
to
,
it
had
been
more
ambiguous
.
So
Dyer
304.
in
Ejectione
Firme
on
a
Lease
,
his
Supposition
that
the
person
adhuc
seisitus
existit
,
implies
his
Life
,
Siderf
.
p.
61.
Palmer
Rep.
267
,
268.
Arundel
and
Mead.
Cro.
Jac.
mesme
case
.
2
Browl.
165.
It
was
the
Opinion
of
the
Court
in
Cro.
El.
p.
18.
Higgins
and
Grant's
Case
,
That
if
in
Ejectment
one
declares
of
a
Lease
by
a
Parson
,
he
ought
to
averr
his
Life
;
for
by
his
death
his
Lease
is
void
,
but
it
's
now
otherwise
,
2
Bulstr
.
79.
Cr.
El.
18.
Higgins
and
Grant
.
Of
the
Delivery
of
Declarations
,
Filing
and
Entry
.
The
Court
,
If
the
Declaration
in
Ejectment
be
delivered
after
the
Essoyn-day
,
If
the
Declaration
in
Ejectment
be
of
Michaelmas-Term
,
Sid.
p.
432.
Prodger's
Case
.
2
Ventr
.
Tonstale
and
Broad
.
It
is
the
Course
of
the
Court
in
Ejectment
,
if
the
[
*
](A49745-e33880-b)
*
If
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
,
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
,
Per
Cur'
the
Declaration
is
ill
,
and
the
Plaintiff
can
have
no
Judgment
;
Per
Hale
the
Lease
is
good
only
for
three
years
,
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
,
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
,
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
,
Common
Pleas
,
who
amended
it
,
though
never
right
in
any
of
the
Proceedings
.
The
Bishop
of
Worcester's
Case
in
this
Court
,
Ni.
pr.
Camberlain
against
the
Hundred
of
Tundring
upon
the
Statute
of
Hue
and
Cry
,
Ours
is
a
far
stronger
Case
;
for
this
Amending
,
if
it
had
been
before
Trial
,
would
not
have
altered
the
Issue
,
or
any-wise
influenced
the
Merits
of
the
Cause
.
Now
,
My
Lord
,
we
are
intituled
to
the
Favour
of
the
Court
,
in
respect
we
moved
this
matter
before
Trial
,
and
were
bid
by
the
Court
to
move
it
afterwards
;
and
if
this
had
been
a
fatal
matter
,
the
Plaintiff
ought
to
have
been
nonsuited
,
which
was
then
insisted
on
by
the
Defendants
,
and
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
,
After
Verdict
and
Judgment
the
Declaration
cannot
be
amended
,
de
Rectoria
&
Tenementis
praedict'
,
(
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
,
Pract.
Reg.
110.
It
must
be
alledged
in
what
Vill
the
Tenements
are
;
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
,
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
;
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.
As
to
the
Form
.
Ejectment
was
against
two
,
Vi
&
armis
are
left
out
in
the
Declaration
,
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.
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
,
Declaration
in
Ejectment
is
Quod
cum
such
an
one
dimisit
,
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
.
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
,
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
usque
finem
&
terminum
quinque
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
predicta
cum
pertin
que
p̄dict
S.
prefat'
W.
in
forma
predicta
dimisit
ad
terminum
p̄rict
qui
nondum
preteriit
intravit
&
ipsum
a
firma
sua
predicta
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
quandque
,
&c.
I.
Lo.
usque
Octab
Hillarij
.
In
the
King
's
Bench.
TH.
queritur
de
Iacobo
W.
In
the
Office
of
Pleas
in
the
Exchequer
.
A.
B.
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
,
After
the
Declaration
delivered
,
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
quer'
&
I.
R.
Attornat
ꝓ
T.
W.
de
W.
in
Com
E.
p̄dict
Yeom
quod
idem
T.
admittatur
defendens
qui
indilate
comparebit
p
Attorn
suum
p̄dict
&
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
quousque
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
quer'
&
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
custag'
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
custag'
W.
H.
Def.
qualia
p
Cut
adjudicata
fuerint
p
Cur'
'
.
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.
CHAP.
VIII
.
Of
Pleadings
in
Ejectment
.
What
shall
be
a
good
Plea
in
Abatement
in
this
Action
.
Entry
of
the
Plaintiff
haenging
the
Writ
.
Entry
after
Verdict
,
and
before
the
day
in
Bank
.
After
Imparlance
no
Pleading
in
Abatement
,
and
why
.
Abate
,
because
he
shews
not
in
which
of
the
Vills
the
Land
lies
.
Ejectment
against
Baron
and
Feme
;
Baron
dies
since
the
Nisi
prius
,
and
before
the
day
in
Bank
.
Of
pleading
to
the
Jurisdiction
.
Conisance
not
allowable
on
Suggestion
,
but
it
must
be
averred
or
pleaded
.
How
Prescription
to
the
Five
Ports
to
be
made
.
Ancient
Demesne
a
good
Plea
in
Ejectment
,
and
why
.
Of
Plea
of
Ancient
Demesne
allowed
the
same
Term
,
and
how
.
Of
Pleas
puis
darrein
Continuance
.
Entry
puis
darrein
Continuance
pleaded
at
the
Assises
is
reasonable
;
the
Consequence
of
a
Demurrer
to
this
Plea
.
Release
from
one
of
the
Plaintiffs
in
Writ
of
Error
,
whom
it
shall
bar
.
Accord
with
Satisfaction
pleaded
in
Ejectment
.
Aid
prier
,
and
why
the
Defendant
shall
not
have
Aid
of
the
King
,
aliter
of
a
common
Person
;
But
a
Writ
not
to
proceed
Rege
inconsulto
allowed
.
Recovery
and
Execution
in
a
former
Action
pleaded
in
Bar.
Bar
in
one
Ejectione
Firme
how
a
Bar
in
another
.
THE
General
Issue
in
Ejectione
Firme
is
now
setled
by
Rule
of
Court
to
be
Not
guilty
,
tho'
formerly
the
Defendant
might
have
pleaded
Non
ejecit
,
or
any
other
Title
;
and
therefore
tho'
this
Chap.
2.
may
seem
needless
,
because
by
the
new
Practice
,
upon
Not
guilty
pleaded
,
the
Title
is
only
to
be
insisted
on
at
the
Trial
,
yet
in
some
Cases
special
Pleas
may
and
ought
to
be
pleaded
in
Ejectione
Firme
,
especially
in
inferiour
Courts
,
which
I
shall
first
treat
of
,
and
then
give
a
little
touch
as
to
the
special
Pleading
formerly
in
use
in
this
Action
,
that
so
the
Reader
may
not
be
totally
ignorant
thereof
.
But
first
,
What
shall
be
a
good
Plea
in
Abatement
.
Per
Cur
'
,
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
,
Entry
of
the
Plaintiff
hanging
the
Writ
,
In
Williams
and
Ashet's
Case
the
Defendant
would
have
pleaded
Entry
after
the
Verdict
in
Abatement
of
the
Writ
,
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
.
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
.
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
Cro.
Jac.
356.
Rigley
and
Lee.
Ejectione
Firme
by
J.
S.
against
N.
and
O.
N.
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
,
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
.
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
,
In
Ejectment
the
Plaintiff
declares
of
a
Lease
made
at
Haylsham
;
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
,
Sir
Edward
Turner
in
Ejectment
,
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
,
Keb.
946.
948.
Sid.
103.
The
Defendant
prayed
to
be
admitted
to
plead
in
Abatement
,
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
,
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
,
Maidstone
;
per
Twisden
this
being
an
inferiour
Court
,
they
cannot
try
the
Demise
,
which
is
issuable
,
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
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
,
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
,
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
;
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
,
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.
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
:
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
,
Upon
a
Special
Verdict
in
Ejectment
,
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
.
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
,
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.
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
,
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
.
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
,
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
,
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
.
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
.
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
,
Stiles
Rep.
412.
Note
,
The
Defendant
by
Rule
of
Court
,
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
?
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
.
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
,
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
;
per
Cur'
if
the
Juror
had
owed
Money
to
one
of
the
parties
,
1
Bulst.
20
,
21.
Odil
and
Terril
.
CHAB
.
IX
.
Of
Challenge
.
What
is
Principal
or
not
.
Of
Elisors
.
Of
Venue
,
Where
the
Parish
and
Vill
shall
be
intended
all
one
:
Where
it
shall
not
be
de
Corpore
Comitatus
.
Where
the
Venire
fac'
is
amendable
.
Venire
fac'
to
the
Coroners
,
because
the
Sheriff
is
Cousin
to
one
of
the
Defendants
.
A
Venire
de
Forrest
.
Venire
de
Novo
for
Baron
and
Feme
.
BY
Coke
in
Guest
and
Bridgman's
Case
,
Rolls
Rep.
328.
2
Rolls
Rep.
181.
Banister's
Case
.
Venire
fac
'
awarded
to
the
Coroners
upon
Surmise
that
the
Lessor
was
Servant
to
the
Sheriff
.
per
Stat.
32
H.
8.
Cro.
Jac.
p.
21.
Harebotle
and
Placock
.
Challenge
to
the
Sheriff
,
Brownl.
130.
Cradock
and
Jones
.
It
is
not
any
principal
Challenge
to
a
Juror
(
in
Ejectione
Firme
)
That
he
had
married
the
Cousin-german
of
A.
Rolls
Abr.
654.
Gabriel
Dennis's
Case
.
In
the
Lord
Brooks's
Case
,
the
Court
was
informed
,
That
rhe
Lessor
of
the
Plaintiff
,
was
High
Sheriff
of
the
County
,
and
that
the
Coroner
was
Under-Sheriff
;
Tr.
1657.
Hut
.
25.
Moor
470.
Rolls
Rep.
320.
15
Car.
2.
B.
R.
Duncomb
and
Ingleby
.
In
Ejectment
the
Plaintiff
suggesteth
,
that
his
Lessor
the
Sheriff
and
Coroners
were
Tenants
to
a
Dean
and
Chapter
,
In
Ejectione
Firme
the
Array
was
challenged
,
Godbolt
428.
Williams
and
Lloyd
.
2
Rolls
Rep.
363
,
and
131.
In
Ejectione
Firme
on
Non
culp
'
pleaded
,
it
is
not
any
Challenge
to
the
Array
,
that
the
Sheriff
is
Cousin
to
the
Lessor
of
the
Plaintiff
;
for
it
does
not
appear
that
the
Title
of
him
in
Reversion
,
shall
be
in
question
;
for
peradventure
the
Lease
is
not
well
made
,
or
no
Ejectment
committed
,
and
he
in
Reversion
is
not
any
Party
to
the
Action
.
So
in
the
said
Case
it
shall
not
be
any
Challenge
,
altho'
it
appear
to
the
Court
by
Averment
,
that
this
Lease
was
made
only
in
Trust
,
and
to
try
the
Title
of
the
Plaintiff
for
the
Cause
aforesaid
.
Rolls
Abr.
p.
653.
Sir
Edward
Kempston
and
Banister
Cradock
.
Id.
ibid.
Ejectment
for
Lands
in
Sussex
tried
at
the
Bar
,
the
Defendant
challenged
the
Polls
for
Default
of
Hundredors
,
but
did
not
shew
it
for
Cause
,
till
the
Pannel
was
perused
.
Per
Hale
,
Chief
Baron
,
Hardr.
p.
228.
Attorney-General
and
Pickering
in
Scaccario
.
In
Ejectione
Firme
upon
a
Lease
made
in
G.
of
Land
in
T.
In
G.
praedict
'
the
Venue
shall
not
be
from
G.
but
from
T.
for
it
shall
be
intended
that
T.
is
a
Vill
of
G.
2
Rolls
Abr.
620.
Beachamp
and
Sampson
.
The
Lease
is
made
apud
Curdworth
of
Lands
lying
in
parochia
de
Curdworth
praedict
'
,
the
Issue
was
de
Vicineto
de
parochia
de
Curdworth
:
The
Venire
is
well
awarded
.
(
praedict.
)
is
such
an
Averment
as
that
of
necessity
it
must
be
taken
that
Curdworth
the
Town
,
and
Curdworth
the
Parish
are
all
one
;
and
if
so
be
the
Venire
fac
'
is
of
the
one
or
of
the
other
,
it
must
be
good
:
But
if
the
Parish
be
a
larger
Continent
than
the
Town
,
aliter
,
because
it
cannot
be
intended
that
more
Towns
were
in
the
Parish
,
unless
it
were
shewed
on
the
other
side
;
and
we
are
to
judge
by
the
Record
which
proves
the
Town
and
the
Parish
to
be
all
one
.
So
in
43
and
44
Eliz.
in
Ejectment
,
the
Lease
whereupon
the
Trial
was
had
,
was
made
apud
Abingdon
,
of
Lands
lying
in
Burgo
de
Abingdon
praedict
.
The
Venire
was
de
Vicineto
de
Burgo
de
Abingdon
praedict.
This
is
a
good
Venire
,
for
(
praedict.
)
makes
this
by
Intendment
of
Law
to
be
all
one
,
2
Bustr
.
209.
Vale
and
Field
.
2
Rolls
Rep.
21.
mesme
Case
.
Cro.
Jac.
340.
mesme
Case
.
In
an
Ejectione
Firme
,
apud
Ickworth
of
Land
in
Berry
in
Suffolk
,
and
Not
guilty
pleaded
,
the
Venire
fac
'
shall
be
from
Berry
,
and
not
from
Ickworth
;
for
the
Issue
of
Not
guilty
refers
to
the
Ejectment
,
which
was
where
the
Land
lies
,
2
Rolls
Abr.
619.
Pell
and
Spurgeon
.
The
Award
upon
the
Plea-Roll
was
against
both
Defendants
,
Non
culp
'
.
The
first
Process
(
viz:
)
the
Habeas
corpora
was
against
both
,
but
the
Venire
fac
'
against
one
of
them
,
only
one
of
them
being
named
in
the
Trial
,
and
Verdict
for
the
Plaintiff
against
both
Defendants
.
Per
Cur'
the
Venire
fac
'
was
amended
after
Error
brought
,
because
vitium
Clerici
,
3
Bulstr.
311.
Cranfeild
and
Turner
.
Ejectione
Firme
of
Lands
in
D.
and
the
Visne
was
from
the
Parish
of
D.
pro
Quer
'
:
It
was
objected
as
Error
,
for
the
Venue
ought
to
be
from
D.
and
not
from
the
Parish
of
D.
for
it
may
be
the
Parish
extended
into
several
Vills
:
But
per
Cur'
it
is
well
awarded
;
for
prima
facie
they
shall
be
intended
all
one
,
if
it
does
not
appear
to
the
contrary
by
pleading
;
and
it
shall
not
be
intended
to
extend
into
several
Vills
,
Jones
Rep.
205.
Gilbert
and
Parker
.
Moor
797
,
798
,
837.
The
Venire
fac
'
was
de
Vicineto
parochiae
de
Bredon
,
which
was
ill
;
for
the
Lease
and
Ejectment
are
alledged
to
be
at
Bredon
,
which
shall
be
intended
to
be
a
Vill
,
and
the
Lands
are
intended
to
be
at
Workington
(
which
also
shall
be
taken
to
be
a
Vill
)
in
the
Parish
of
Bredon
;
so
that
it
appears
to
the
Court
,
that
there
is
a
Town
called
Bredon
,
a
Parish
called
Bredon
,
and
Workington
a
Vill
in
the
Parish
of
Bredon
,
and
the
Tythes
are
alledged
to
be
in
Workington
and
Willesdon
(
which
also
shall
be
intended
a
Vill
)
in
parochia
de
Bredon
;
so
that
the
Venue
ought
not
to
have
been
out
of
the
Parish
of
Bredon
,
Workington
and
Willesdon
:
And
though
Workington
and
Willesdon
are
named
Hamlets
in
the
Pern●men
,
yet
the
Court
ought
to
adjudge
upon
that
which
is
alledged
by
the
Plaintiff
in
his
Count
,
11
Rep.
25.
6.
Harpur's
Case
.
Ejectione
Firme
versus
B.
for
ejecting
him
of
certain
Lands
in
Creeting
St.
Marys
,
Creeting
St.
Olaves
and
in
Creeting
omnium
Sanctorum
;
and
the
Venire
fac
'
was
de
Vicineto
de
Creeting
St.
Mary
,
Creeting
St.
Olives
and
Creeting
Omnium
omitting
Sanctorum
;
the
Court
blamed
the
Clerk
for
his
Negligence
,
Winch.
34.
Good
and
Bawtry
.
In
the
Venire
fac
'
one
of
the
Pannel
was
named
Thomas
Barker
of
D.
and
in
the
Distringas
Jurat
'
he
was
left
out
,
and
Thomas
Carter
de
D.
put
in
his
place
;
and
at
the
Nisi
prius
Thomas
Carter
was
sworn
,
and
with
others
tried
the
Issue
.
Per
Cur'
there
is
difference
between
a
Mistake
in
the
Name
of
Baptism
and
in
the
Sirname
;
Cro.
El.
p.
57.
Displyn
and
Spratt
.
Ejectione
Firme
of
a
Lease
apud
Denham
in
Lands
of
the
Parish
de
Denham
praedict
'
;
the
Venire
was
de
Vicineto
de
Denham
,
it
's
good
enough
.
The
Parish
and
Village
are
intended
to
extend
,
and
to
be
all
one
,
Cro.
El.
538.
Bedel
and
Stanborough
.
The
Venire
fac
'
was
ad
faciend'
Jurat'
in
placito
transgressionis
,
whereas
it
should
have
been
in
placito
Transgressionis
&
Ejectionis
Firme
,
and
it
was
not
amended
;
for
tho'
Ejectione
Firme
is
but
a
Plea
of
Trespass
in
its
nature
,
yet
the
Actions
are
several
,
and
therefore
the
Venire
fac
'
ought
to
be
accordingly
,
Cro.
El.
622.
Clerk's
Case
.
Ejectione
Firme
of
a
Lease
at
Mockas
in
Lower
Mockas
.
The
Defendant
pleads
Not
guilty
,
and
found
against
him
,
and
it
was
moved
to
be
a
Mis-tryal
;
for
the
Venire
fac
'
was
awarded
from
Mockas
,
where
it
ought
to
have
been
from
Lower
Mockas
,
the
Issue
being
Not
guilty
;
but
if
the
Lease
had
been
traversed
,
it
had
been
otherwise
,
Williams
and
Whitin
.
In
Ejectione
Firme
the
Plaintiff
declares
of
a
Lease
of
Land
in
B.
Pernomen
of
,
&c.
in
B.
C.
&c.
The
Venue
from
B.
is
good
,
2
Rolls
Rep.
479.
Taylor
and
Lenn
.
The
Appearance
and
Issue
were
in
Hill
.
Crastino
Pur
'
,
and
thereupon
was
the
Declaration
,
and
Issue
,
and
Venire
fac
'
awarded
,
bearing
date
the
23th
of
January
1
Jacobi
,
and
upon
this
a
Distringas
the
12th
of
February
,
moved
in
Arrest
,
That
the
Venire
fac
'
was
awarded
before
the
Appearance
and
Declaration
to
try
the
Issue
in
the
same
Action
,
and
cannot
be
good
.
Per
Cur'
it
was
amendable
,
for
the
Roll
is
the
Warrant
of
the
Venire
fac
'
,
which
being
variant
from
it
,
the
Teste
thereof
shall
be
amended
to
be
subsequent
to
the
Issue
joyned
.
And
whereas
the
Teste
was
the
23th
of
January
,
which
was
Sunday
,
it
shall
be
amended
,
it
being
but
the
Fault
of
the
Clerk
,
and
misawarding
of
Process
,
which
is
aided
per
Stat.
32
H.
8.
and
18
Eliz.
Cro.
Jac.
64.
Dolphin
and
Clark
.
William
Brown
of
Bradfeild
was
returned
upon
the
Venire
fac
'
and
Hab.
William
Brown
of
Metfeld
,
who
was
another
Person
and
not
returned
,
was
sworn
;
yet
this
cannot
be
assigned
for
Error
;
for
it
is
against
the
Record
,
which
is
,
That
William
Brown
of
B.
was
returned
and
sworn
;
and
he
is
estopt
to
say
the
contrary
,
for
then
every
Record
may
be
brought
in
Question
upon
such
Surmise
,
Cro.
Jac.
244.
Bowss
and
Cannington
.
A
Vill
and
Parish
are
intended
all
one
,
unless
the
contrary
be
shewed
.
Vide
Cro.
Jac.
150.
Batch
and
Gilbert
.
The
Court
was
moved
to
change
the
Venue
in
Ejectment
laid
in
London
,
because
the
Lands
in
Question
did
concern
the
Poor
in
London
;
and
therefore
it
was
supposed
they
could
not
have
an
indifferent
Trial.
Per
Rolls
the
Action
is
local
,
and
cannot
be
removed
,
except
you
draw
it
from
thence
by
your
Plea
,
Stiles
Rep.
395.
Hunslop
and
Johnson
.
In
Ejectione
Firme
upon
a
Lease
made
at
D.
Comitat'
E.
of
Land
called
S.
If
Not
guilty
be
pleaded
,
and
a
Venire
fac
'
awarded
de
Corpore
Comitatus
E.
there
not
being
any
Vill
named
wherein
the
Land
lies
,
it
is
erroneous
;
because
this
lies
in
some
Vill
out
of
which
the
Visne
ought
to
have
come
to
have
tried
it
,
and
in
such
case
it
ought
not
to
come
de
Corpore
Comitatus
,
for
this
is
larger
,
Hob.
p.
89.
Rich
and
Sheere
.
Venire
fac
'
awarded
to
the
Coroners
,
ita
quod
B.
one
of
the
Coroners
se
non
intromittat
,
because
he
was
Servant
of
the
High-Sheriff
,
who
was
Lessor
of
the
Plaintiff
;
it
was
said
,
the
same
was
no
Cause
of
Challenge
,
but
the
Court
conceived
it
was
,
being
confessed
,
Moor
623.
Higgins
and
Spicer
.
In
Ejectione
Firme
against
four
who
plead
Not
guilty
,
Rolls
Abr.
668.
Fox
and
Shepheard
in
Exchequer-Chamber
.
Vide
Raymund
572.
Consent
may
make
a
Trial
had
in
a
foreign
County
,
good
.
In
Ejectione
Firme
of
three
Acres
of
Land
in
Forresta
de
K.
in
Com.
&c.
If
the
Defendant
plead
Non
culp
'
,
the
Venue
may
be
de
Vicineto
Forrestae
,
for
this
is
Lieu
conus
,
and
by
Intendment
,
forasmuch
as
the
Defendant
had
not
pleaded
this
in
Abatemenc
,
this
is
out
of
any
Parish
or
Vill
,
2
Rolls
Abr.
621.
Phillips
and
Evans
.
In
Ejectione
Firme
against
Baron
and
Feme
;
Vid.
infra
Tit.
Special
Verdict
.
CHAP.
X.
Of
joyning
Issue
and
Trial
,
and
Bill
of
Exception
.
In
what
Cases
there
shall
be
Amendment
.
THE
Record
of
the
Nisi
prius
was
amended
by
the
Plea-Roll
,
1
Brownl.
133.
Gaff
and
Randal
.
Issue
was
joyned
,
the
Defendant
pleads
Not
guilty
,
and
it
was
entred
,
and
the
aforesaid
Lessor
likewise
,
where
it
should
have
been
&
praedict'
Querens
similiter
,
and
it
was
amended
.
So
&
praedict'
Thomas
similiter
,
where
it
should
be
praedict'
Johannes
similiter
,
and
it
was
amended
,
2
Brownl.
102.
Weeby's
Case
.
2
Rolls
Abr.
199.
The
Issue
was
Not
guilty
,
and
a
Venire
awarded
retornable
3
Trin.
and
the
Essoyn
adjourned
by
the
Plaintiff
till
Michaelmass-Term
;
and
at
the
next
Assises
the
Plaintiff
,
notwithstanding
the
Essoyn
,
and
the
adjourning
it
,
procured
a
Nisi
prius
,
by
which
it
was
found
for
the
Plaintiff
:
And
per
Curiam
no
Nisi
prius
ought
to
issue
out
in
this
Case
,
because
the
Plaintiff
himself
by
the
adjourning
the
Essoyn
,
cast
by
the
Defendant
until
Michaelmass-Term
,
had
barred
himself
of
all
Proceedings
in
the
mean
time
.
And
the
words
in
the
Stat.
W.
2.
c.
27.
E.
H.
and
it
appeared
at
the
Tryal
,
that
E.
K.
was
Essoyned
,
and
the
Court
denied
to
amend
it
,
and
there
was
no
Essoyn
,
and
so
no
Adjournment
,
and
the
Plaintiff
was
at
large
,
and
Judgment
pro
Quer'
.
Note
,
No
Statute
gives
Amendment
but
in
the
Affirmance
of
Judgments
and
Verdicts
,
and
not
in
Defeasance
of
Judgments
and
Verdicts
,
1
Leon.
p.
134.
Woodel
and
Harel
.
In
Dyer
89.
the
Plea
was
,
quod
non
ejecit
querentem
de
,
&c.
modo
&
forma
;
it
was
moved
there
,
that
it
is
not
any
Plea
;
and
yet
Dyer
Vide
121.
b.
The
Defendant
in
any
case
of
Misdemeanour
may
say
generally
Non
Culp
'
or
traverse
the
point
of
the
Writ
,
as
ne
forga
pas
,
non
ejecit
,
non
rapuit
,
non
manutenuit
.
In
Ejectione
Firme
the
Parties
were
at
Issue
,
King's
Bench
,
and
per
Cur'
no
Verdict
shall
be
entred
on
the
Record
,
nor
any
Judgment
on
it
,
2
Leon.
p.
167.
Feild
,
Leich
and
Cage
.
Ejectione
Firme
against
Drake
and
Five
others
.
Drake
pleads
Not
guilty
;
the
others
pleads
,
the
Plaintiff
replie
;
and
so
a
Demur
.
Per
Cur
'
,
seeing
that
one
Issue
in
this
Action
was
to
be
tried
between
the
Plaintiff
and
Drake
,
and
altho'
the
Plaintiff
offered
to
release
his
Damages
on
the
Issue
joyned
,
Ejectione
Firme
,
in
which
Case
the
Possession
of
the
Land
is
to
be
recovered
;
and
it
may
be
,
for
any
thing
that
appeareth
,
that
Drake
,
who
has
pleaded
the
General
Issue
,
has
Title
to
the
Land
.
But
if
this
Action
had
been
an
Action
of
Trespass
,
there
in
such
Case
,
ut
supra
,
upon
Release
of
Damages
,
and
on
the
Issue
joyned
,
the
Plaintiff
shall
have
Judgment
presently
,
2
Leon.
p.
199.
Holland
and
Drake
.
In
B.
R.
Ejectione
Firme
,
and
the
Jury
ready
to
try
it
,
there
comes
a
Writ
to
the
Justices
that
they
should
not
proceed
,
Regina
inconsulta
,
in
the
nature
of
Aid
prier
,
and
it
was
allowed
,
Moor
421
,
583.
Nevil
and
Barrington
.
A
Suit
in
the
Spiritual
Court
pro
jactitatione
Maritagij
,
stays
not
Tryal
,
1
Keb.
519.
Ejectment
in
Brecknock-shire
,
Stat.
27
H.
8.
it
's
a
Mis-tryal
;
for
Monmouth-shire
was
made
an
English
County
but
in
time
of
Memory
by
that
Statute
,
and
so
it
ought
to
have
been
tried
in
Hereford
shire
,
Hard.
66.
Morgan's
Case
.
Error
of
a
Judgment
in
B.
R.
in
Ireland
in
Ejectment
,
after
Verdict
for
Lands
in
the
County
of
Clare
.
It
was
excepted
,
that
the
Verdict
was
given
by
a
Jury
retorned
by
the
Sheriff
of
the
Queens
County
,
Hob.
p.
5.
sed
non
alloc
'
;
for
the
Consent
of
the
Parties
to
this
Tryal
was
entred
upon
the
Roll
,
which
was
not
in
Hobart
,
but
only
in
a
proper
Rule
of
Court
,
and
therefore
the
Judgment
there
was
reversed
,
as
1
Rolls
Rep.
28.
Crow
and
Edwards
;
with
this
accords
Cr.
El.
664.
Sir
Thomas
Jones
.
199.
Devoren
and
Walcott
.
A
new
Tryal
was
denied
in
Ejectment
,
Thomas
Jones
224.
Earl
of
Thanet's
Case
.
Ejectment
was
brought
for
Lands
in
the
County
of
Clare
in
Ireland
.
Issue
was
joyned
on
Not
guilty
,
and
then
there
is
an
Entry
on
the
Roll
,
Et
super
hoc
pro
indifferentitriatione
exitus
praedict'
inter
partes
praedict'
eaedem
partes
ex
eorum
unanimi
Consensu
,
&
Assensu
,
&
Consensu
eorum
Conciliat'
&
Attornat'
,
&c.
petunt
Breve
Dom'
Regis
Vic'
Com'
Cork
dirigend'
de
Veni●e
fac'
duodecim
de
corpore
Comitatus
sui
ad
triandum
exitum
praedict.
Ideo
praecept'
est
,
&c.
then
there
is
a
Nisi
prius
granted
to
the
County
of
Cork
,
and
the
Cause
was
there
tried
,
and
a
Bill
of
Exception
put
in
;
and
on
Debate
in
B.
R.
Judgment
was
given
for
the
Defendant
.
The
Plaintiff
brings
a
Writ
of
Error
,
whether
Consent
can
make
this
Tryal
in
a
Foreign
County
,
good
;
and
per
Cur'
the
Tryal
is
well
had
,
Raym.
372.
Vicount
Clare
and
Lynch
.
Hob.
5.
1
Rolls
Rep.
166
,
363.
Palmer
100.
At
the
Assises
in
Northumberland
15
Car.
Hab.
Corpus
,
and
therefore
the
Court
discharged
the
Nonsuit
,
and
gave
leave
to
the
Party
to
proceed
again
,
Sid.
64.
Tomson's
Case
.
CHAP.
XI
.
Of
joyning
Issue
and
Tryal
.
Where
Issue
in
Ejectment
shall
be
tried
in
other
County
than
where
the
Lands
lie
.
Trial
by
Mittimus
in
the
County
Palatine
:
Who
shall
be
good
Witnesses
or
not
in
this
Action
.
What
shall
be
good
Evidence
in
this
Action
.
Copy
of
Deed.
Deed
cancelled
.
Conditions
collateral
.
Warranties
found
by
Jury
.
What
is
good
Evidence
in
reference
to
a
former
Mortgage
.
Where
Probate
of
Will
is
sufficient
Evidence
,
or
not
.
In
case
of
Rectory
what
is
good
Evidence
,
and
what
things
the
Parson
must
prove
.
Ancient
Deed.
Scyrograph
of
a
Fine
and
constant
Ejoyment
.
Evidence
as
to
an
Appropriation
.
Deposition
of
Bankrupts
.
Deposition
in
Chancery
.
Answer
in
Chancery
.
Transcript
of
a
Record
.
Inrolment
of
Deed.
Doomsday-book
.
Variance
between
the
Declaration
and
the
Evidence
.
Demurrer
to
an
Evidence
.
Exemplification
of
a
Verdict
.
Where
Issue
in
Ejectment
shall
be
tried
.
IT
ought
to
be
in
the
County
where
the
Land
lies
.
If
Ejectione
Firme
be
brought
and
laid
in
Com'
D.
for
Lands
lying
in
another
County
,
altho'
this
be
by
Assent
of
the
Parties
,
and
the
Defendant
pleads
Not
guilty
,
and
Verdict
and
Judgment
given
for
the
Plaintiff
,
yet
this
is
Error
;
for
this
is
against
the
Law
,
which
cannot
be
altered
by
Assent
of
the
Parties
:
But
upon
View
of
the
Record
,
if
it
doth
not
appear
to
the
Court
that
the
Land
lies
in
another
County
,
they
will
not
reverse
the
Judgment
for
that
Cause
.
And
it
was
ruled
to
be
Error
in
the
Exchequer-Chamber
in
the
Bishop
of
Landaff's
Case
.
Thomas
Jones's
Rep.
Devoren
and
Walcot's
Case
,
it
is
held
,
That
a
Tryal
by
Consent
upon
the
Roll
in
other
County
than
where
the
Land
lies
,
is
good
in
Ejectment
,
1
Rolls
Abr.
787.
2
Keb.
260.
Sir
Thomas
Jones
199.
Devoren
and
Walcott
.
In
an
Ejectione
Firme
in
London
upon
a
Lease
made
of
Lands
in
Middlesex
,
Rolls
Abr.
603.
Herbert
and
Middleton
.
But
in
Flower
and
Standing's
Case
in
Ejectment
,
M.
20
Car.
2.
B.
R.
In
Ejectment
one
may
not
have
Priviledge
of
Tryal
of
Lands
in
Wales
in
the
English
County
next
adjoyning
,
Ejectment
is
brought
against
one
in
Custodia
in
B.
B.
R.
and
the
Record
was
sent
down
by
Mittimus
from
B.
R.
and
a
special
Indorsement
of
the
Postea
;
and
thereof
one
prayed
Judgment
against
his
own
Ejector
in
an
Action
of
Lands
in
the
County
Palatine
of
Chester
,
which
the
Court
granted
;
because
when
the
Defendant
hath
pleaded
to
Issue
,
they
may
try
it
by
Mittimus
in
the
County
Palatine
,
Redvish
and
Smith's
Case
.
M.
15.
2
Car.
B.
R.
Holloway
and
Chamberlen
.
Action
on
the
Case
on
feigned
Issue
out
of
Chancery
;
Per
Twisden
Justice
,
the
Lands
being
in
the
Isle
of
Wight
,
and
the
Jury
of
Surrey
,
this
Tryal
is
not
allowable
to
try
Conveyata
,
or
not
,
this
being
a
Windlace
to
try
Ejectments
in
another
County
.
But
in
1
Ventr.
66.
a
Title
of
Land
was
tried
out
the
proper
County
upon
a
feigned
Wager
,
whether
well
conveyed
or
not
(
this
is
the
usual
Course
of
Issues
directed
out
of
Chancery
)
2
Keb.
634.
Meres
Case
.
1
Ventris
66.
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
,
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
,
Parishioners
may
be
a
Witness
to
a
Devise
by
which
the
Parish
claims
Lands
to
the
Relief
of
the
Poor
.
Exception
was
taken
against
a
Witness
produced
to
prove
the
Lease
of
Ejectment
,
Stiles
Rep.
482.
Fox
and
Swann
.
One
Coparcener
cannot
be
Evidence
for
another
in
Ejectment
,
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
,
M.
20
Car.
2.
B.
R.
Hitchcok's
Case
.
In
Ejectment
of
the
Manor
of
S.
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
,
vide
Mod.
Rep.
21
,
73
,
74
,
107.
Hob.
92.
In
Ejectment
at
Tryal
at
Bar
,
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
,
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
,
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
,
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
,
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
;
The
Copy
of
a
Record
may
be
shewed
and
given
in
Evidence
to
a
Jury
,
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
,
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
.
Plowd
.
Com.
411.
Note
,
A
Fine
or
Recovery
,
The
Copy
of
a
Recovery
was
suffered
to
be
given
in
Evidence
,
Mod.
Rep.
117.
Green
and
Proud
.
The
Court
allowed
an
old
Recovery
,
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
,
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
,
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
,
Hardr.
323.
Knight
and
Dawler
.
But
when
he
that
sues
an
Elegit
,
brings
an
Ejectment
to
try
the
Title
,
A
Transcript
of
a
Record
,
or
Inrolment
of
a
Deed
,
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
,
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
.
And
what
hath
been
said
as
to
the
Legal
Part
of
a
Deed
,
holds
as
to
Letters
Patents
.
A
Deed
cancelled
by
Practice
,
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
.
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
,
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
,
Ra.
Entr.
318.
1
&
2
P.
&
M.
Rot.
13.
B.
R.
cited
.
Hardr.
119
,
120.
A
Copy
of
the
Counterpart
of
a
Lease
,
Tho'
the
Seals
be
broken
off
a
Lease
,
Mod.
Rep.
fol.
11.
Q.
if
the
Deed
be
pleadable
.
A
Copy
of
a
Court-Roll
may
be
given
in
Evidence
,
Car.
2.
B.
R.
Snow
and
Cutler
.
For
if
a
Deed
be
pleaded
,
haec
verba
,
Stiles
p.
34.
Wright
and
Pindar
.
A
Deed
made
before
the
time
of
Memory
,
P.
17
Car.
2.
B.
R.
Wright
and
Sherrard
.
A
Will
,
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
,
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
,
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
,
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
.
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
;
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
,
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
,
Hardr.
336.
Raymund
.
Watts's
Case
.
Depositions
taken
before
Commissioners
of
Bankrupts
,
P.
18
Car.
2.
Bick
and
Browning
.
Exemplification
of
Depositions
under
the
Great
Seal
,
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
,
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
,
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
,
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
,
Ejectione
Firme
,
Trespass
,
&c.
in
Action
on
the
Stat.
5
R.
2.
cap.
7.
and
other
personal
Actions
,
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
,
The
Jury
may
find
Estoppel
,
which
cannot
be
Pleaded
,
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
;
it
s
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
,
Latch
.
62.
Hems
and
Stroud
.
A
Parson
in
the
Ejectment
of
a
Rectory
,
Keb.
48.
Siderf.
221.
Dr.
Crawley's
Case
.
In
Evidence
an
Institution
without
Presentation
,
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
.
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
,
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
.
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
,
nihil
,
sed
non
allocatur
.
2.
It
was
further
objected
,
That
it
appears
,
that
more
than
a
Moiety
is
extended
:
For
it
s
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
,
If
an
ancient
Deed
of
Feoffment
be
shewed
,
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
,
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
,
Rolls
Abr.
719.
England
and
Long.
So
if
a
Man
Declare
a
Lease
by
two
,
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
,
Cr.
Jac.
166.
Mantler's
Case
.
If
the
Declaration
be
of
a
Lease
of
three
Acres
,
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
,
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
,
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
,
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
.
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
,
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
,
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
Lay-gents
,
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
:
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.
CHAP.
XII
.
Rules
for
Learning
of
Special
Verdicts
.
Of
Estoppels
found
by
the
Jury
,
and
how
they
shall
bind
.
What
is
a
material
variance
between
the
Declaration
and
Verdict
.
Of
priority
of
Possession
.
Where
the
Special
Conclusion
of
the
Verdict
shall
aid
the
Imperfections
of
it
.
Where
,
and
in
what
Cases
the
Verdicts
makes
the
Declaration
good
.
Verdict
Special
taken
according
to
intent
.
Difference
where
the
Verdict
concludes
specially
on
one
Point
,
and
where
it
concludes
in
general
,
or
between
the
Special
Conclusion
of
the
Jury
and
their
Reference
to
the
Court.
Circumstances
in
a
Special
Verdict
,
need
not
be
precisely
found
.
Where
the
Judges
are
not
bound
by
the
Conclusion
of
the
Jury
.
Of
certainty
and
uncertainty
,
in
a
Special
Verdict
.
Of
the
finding
quo
ad
residuum
,
certainty
or
uncertainty
in
reference
to
Acres
,
Parishes
,
Vills
,
Place
.
Of
Verdict
being
taken
by
Parcels
.
How
the
Ejectment
of
a
Manor
to
be
brought
.
Of
a
Verdict
,
on
other
Lease
or
Date
than
is
declared
upon
,
which
shall
be
good
or
not
.
Of
the
Juries
finding
parcel
.
Where
Verdict
shall
be
good
for
part
,
and
void
for
the
residue
.
The
time
of
the
Entry
of
the
Plaitiff's
Lessor
where
material
.
Where
the
Jury
ought
to
find
an
actual
Ouster
,
on
him
that
had
the
Right
.
Prout
lex
postulat
,
how
to
be
understood
.
Where
,
and
in
what
Cases
Special
Verdict
may
be
amended
.
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
,
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
,
Note
,
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
,
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
,
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
,
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
,
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
,
In
Wallis's
Case
,
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
,
Keb.
503.
Brown
and
Spencer
.
3.
Siderf
.
p.
27.
Hoare
and
Dix
.
4.
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
.
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
it
s
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
,
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.
Ejectione
Firme
was
brought
by
G.
against
W.
upon
Not
guilty
,
the
Jury
concluded
their
doubt
upon
performance
of
a
Condition
,
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.
p.
13
Car.
1.
B.
R.
Johnson
and
Trumper
.
A
Life
shall
be
intended
to
be
in
being
tho'
not
found
,
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.
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
,
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
,
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
,
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
it
s
not
found
,
Per
Cur.
it
s
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
,
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
,
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
,
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
,
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
:
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
.
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
.
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
,
8.
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.
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
,
The
time
of
the
Entry
of
the
Plaintiff
is
sometimes
material
,
as
in
Fort
and
Berkley's
Case
.
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
it
s
said
he
was
possest
prout
lex
postulat
,
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
.
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
,
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
,
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
,
Of
the
Juries
finding
by
Parcels
.
It
is
a
Rule
:
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
.
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
,
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
,
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
.
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.
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
,
Sid.
p.
412.
Ejectione
Firme
of
the
Manor
of
Dale
;
on
Non
Culp
'
pleaded
,
the
Jury
find
,
quoad
unum
Messuagium
parcel
'
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
,
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
,
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
;
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
;
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
,
Marsh
.
Rep.
47.
Juxon
and
Andrews
.
As
to
Certainty
of
Acres
.
Ejectione
Firme
was
brought
of
400
Acres
of
Land
;
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'
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
;
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
,
Cro.
Jac'
114.
Woolmer
and
Caston
.
In
Ejectione
Firme
de
septem
Messuagiit
sive
tenementis
,
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
,
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
,
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
.
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
,
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
it
s
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
,
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
.
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
,
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
,
&
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
;
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
,
Rolls
Abr.
722.
Langly
and
Pain
.
Where
,
and
in
what
Cafes
Special
Verdicts
may
be
amended
.
Where
a
Special
Verdict
is
not
entred
according
to
the
Notes
,
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
,
Cr.
Car.
338.
The
Plaintiff
was
Non-suited
at
the
Assizes
,
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
,
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
.
CHAP.
XIII
.
Where
the
Defendant
shall
have
Costs
,
and
Damages
.
How
the
Plaintiff
may
aid
himself
by
Release
of
Damage
.
Executor
not
to
pay
Costs
.
Lessor
of
the
Plaintiff
to
pay
Cost
.
Where
Tenant
in
Possession
liable
to
pay
Costs
or
not
.
Feme
to
pay
Costs
on
Death
of
her
Husband
.
Infant
Lessor
to
pay
Costs
of
the
Writ
of
Enquiry
.
The
Entry
.
Writ
of
Error
Lies
upon
the
Judgment
,
before
the
Writ
of
Enquiry
,
and
why
.
Writ
of
Enquiry
how
abated
.
The
Jury
are
to
find
Costs
and
Damages
in
Debt
,
Trespass
,
Ejectment
,
&c
,
IF
the
Plaintiff
mistake
his
Declaration
,
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
,
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
,
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
,
Keb.
827.
Morgan
and
Stapel's
Case
.
The
Lessor
of
the
Plaintiff
by
several
Rules
of
Court
on
Demand
,
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
,
Per
Cur.
1
Keb.
106.
Latham's
Case
.
Note
,
Verdict
was
for
the
Defendant
,
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
,
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.
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
,
Per
Stat.
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
,
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.
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
,
Sid.
p.
229.
Austin
and
Hood
.
Upon
a
Tryal
at
Bar
in
Ejectment
where
two
were
made
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
;
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.
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.
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.
CHAP.
XIV
.
Of
Judgment
in
Ejectment
and
Execution
.
The
Form
of
entring
Judgment
in
this
Action
.
How
the
Entry
is
when
part
is
for
the
Plaintiff
,
and
part
against
him
.
How
against
several
Ejectors
.
The
Form
of
the
Entry
in
case
of
Death
of
the
Plaintiff
or
Defendant
.
After
Verdict
and
before
Judgment
the
Plaintiff
dies
.
Ejectment
for
the
whole
,
and
no
Title
but
to
a
Moiety
.
For
what
Causes
Judgments
in
Ejectment
are
arrestable
or
erroneous
.
In
what
Cases
Judgment
shall
be
amended
.
Of
Judgment
against
ones
own
Ejector
.
NO
Judgment
in
Ejectment
till
Latitat
filed
,
The
Form
of
entring
Judgments
in
this
Action
.
In
Cr.
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
,
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.
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
,
Rolls
Abr.
772.
Fiegot
and
Mallory
.
Ejectment
was
against
several
Defendants
,
(
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
.
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
.
It
s
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
.
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
,
Moor
469.
673.
Griffith
and
Lawrence's
Case
.
Ejectione
Firme
against
Baron
and
Feme
.
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
,
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
,
John
Fitzherbert
versus
Leech
.
And
In
Ejectment
to
try
the
Custom
of
Copyhold
.
M.
23
Car.
2.
B.
R.
Hawthorn
and
Bawdan
.
Ejectment
was
brought
against
seven
,
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
,
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
.
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
,
It
is
said
in
Cooper
and
Franklin's
Case
.
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
,
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.
Dyer
258.
Plow.
19.
1
Bulstr.
49.
10
Rep.
117.
3
Cr.
544.
Ejectione
Firme
was
brought
against
four
,
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.
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.
Ejectione
Firme
was
against
Baron
and
Feme
:
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
,
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
,
Rolls
Abr.
774.
Omalcowr
and
Eyres
.
Note
also
,
If
before
Judgment
the
Years
of
the
Lease
expire
,
the
Plaintiff
had
Judgment
to
recover
Damages
;
In
what
Cases
Judgments
shall
be
amended
.
The
Jury
find
the
Defendant
guilty
of
Ten
Acres
,
Winch.
p.
8.
If
on
Non
culp
'
pleaded
,
a
Verdict
is
for
the
Plaintiff
,
and
Costs
and
Damages
given
;
and
upon
this
the
Judgment
is
,
Quod
quer'
recuperet
the
Damages
and
Costs
,
and
not
quod
recuperet
terminum
,
left
out
.
as
the
use
is
;
this
is
the
Default
of
the
Clerk
,
and
so
amendable
,
1
Rolls
Abr.
206.
Belsh
and
Pate
.
The
Clerk
of
the
Entries
of
the
Judgments
had
mistaken
the
Parcels
,
vice
versa
;
whereas
the
Court's
Judgment
was
,
quod
Judicium
intretur
pro
Quer'
.
In
Ejectione
Firme
of
one
Messuage
,
two
Cottages
,
and
certain
Lands
,
and
the
Jury
find
the
Defendant
guilty
of
the
Moiety
of
a
Messuage
and
Lands
,
and
Not
guilty
of
the
two
Cottages
and
of
the
other
Moiety
of
the
Messuage
and
Lands
,
and
Judgment
is
,
quod
Quer'
recuperet
Terminum
suum
praedict'
de
medietate
tenementorum
praedictorum
,
&
eat
inde
sine
die
for
the
residue
;
and
this
Judgment
,
altho'
it
may
be
intended
that
Judgment
is
given
for
the
Moiety
of
the
two
Cottages
,
Rolls
Abr.
206.
Sawyer
and
Hoskins
.
Judgment
quod
recuperet
,
and
saith
not
terminum
,
yet
amended
,
1
Keb.
155.
The
Judgment
was
,
Cro.
Jac.
632.
Mason
and
Stephenson
.
EXECUTION
.
In
Ejectment
against
two
,
Keb.
786.
Burgoigne
and
Thomas
.
It
was
a
Question
much
debated
,
If
a
Scire
fac'
quare
Executionem
habere
non
debeat
upon
a
Judgment
in
Ejectione
Firme
,
may
be
brought
by
the
Administrator
of
the
Lessee
(
the
Plaintiff
in
Ejectment
,
Per
Cur'
the
Lessee
or
his
Administrator
,
as
well
as
the
Lessor
himself
shall
have
this
Writ
in
such
a
Case
;
this
was
on
demurrer
to
the
Scire
fac
'
:
Yet
the
Lessee
nor
his
Administrator
shall
have
it
,
but
the
Lessor
himself
,
Sid.
317.
Cole
and
Skinner
.
Note
,
Ejectione
Firme
brought
by
him
in
his
own
Name
,
this
is
an
alteration
of
the
Term
,
and
vests
it
in
him
only
,
1
Inst.
46.
Note
,
Note
also
,
Ejectione
Firme
,
if
a
Rule
is
given
to
the
Defendant
to
answer
,
and
he
doth
not
;
and
upon
this
another
Rule
is
given
to
answer
peremptorily
,
and
he
fails
to
do
it
,
no
Judgment
shall
be
entred
against
him
on
a
Nihil
dicit
,
but
upon
Motion
in
Court
.
It
is
said
in
Carter
and
Claypool's
Case
,
1
Rolls
Abr.
887.
If
a
Man
recover
in
Ejectione
Firme
against
J.
S.
who
after
dies
,
he
must
sue
Execution
against
his
Heir
;
for
by
Intendment
J.
S.
his
Ancestor
the
Ejector
,
was
was
a
Disseisor
.
Of
Judgment
against
ones
own
Ejector
.
Judgment
against
the
casual
Ejector
,
Council
prayed
that
he
might
not
plead
to
the
Declaration
of
Michaelmas
Term
on
Lease
of
the
Bishop
of
Worcester
,
made
this
January
Habend
'
from
the
20th
of
October
last
,
which
is
ill
,
per
Cur
'
,
and
Judgment
stayed
;
but
this
is
a
good
Declaration
of
this
Term
by
new
Delivery
,
Keb.
729.
Hill.
18.
Car.
2.
Finch
and
Pley
.
The
Action
was
of
Easter
Term
,
and
the
Demise
and
Title
of
the
Plaintiff
is
but
two
days
before
Trinity
Term
,
per
Cur'
this
is
but
a
Trick
to
gain
Possession
,
as
Sir
Richard
Mincham's
Case
was
,
who
delivered
Ejectments
in
his
Wife's
Life-time
on
Lease
then
when
he
had
Title
as
of
subsequent
Term
when
she
was
dead
;
and
it
is
not
fit
to
put
the
Tenant
to
a
Writ
of
Error
:
So
the
Rule
was
set
aside
,
and
ordered
a
new
Declaration
,
3
Keb.
343.
Tr.
26
Car.
2.
Stedman's
Case
.
Judgment
against
ones
own
Ejector
cannot
be
entred
,
Council
prayed
Judgment
against
his
own
Ejector
in
an
Action
for
Lands
in
the
County
Palatine
of
Chester
,
Com'
Chester
.
which
the
Court
granted
;
because
when
the
Defendant
hath
pleaded
to
Issue
,
they
may
try
it
by
Mittimus
in
the
County
Palatine
,
2
Keb.
135.
Reddish
against
Smith
.
CHAP.
XV.
Habere
facias
Possessionem
.
How
this
Writ
is
to
be
executed
.
And
when
,
and
in
what
Cases
a
new
Habere
facias
Possessionem
,
shall
be
granted
or
not
.
How
the
Sheriff
is
to
deliver
Possession
.
Habere
facias
Possessionem
,
after
the
year
without
Scire
fac'
and
why
.
THis
Writ
is
made
out
by
the
Clerk
of
the
Judgments
,
In
Ejectione
Firme
of
20
Acres
of
Land
.
The
Defendant
on
Not
guilty
pleaded
,
is
found
Guilty
for
10
Acres
,
and
Not
guilty
for
the
Residue
.
Now
the
Plaintiff
at
his
own
peril
,
Savil
p.
28.
And
if
a
Man
bring
Ejectione
Firme
of
40
Acres
of
Land
,
and
recovers
30
,
and
not
the
Residue
.
Upon
the
Writ
of
Execution
the
Sheriff
may
deliver
to
him
any
,
(
viz.
)
Three
or
more
of
the
Acres
in
the
name
of
the
whole
,
Rolls
Abr.
886.
Now
,
When
many
Acres
are
in
demand
,
and
but
part
recovered
,
and
the
Habere
fac'
Possessionem
comes
to
the
Sheriff
to
deliver
Execution
of
the
Land
recovered
,
Pal.
Rep.
289.
Molinex
and
Fulyam
.
Sometime
a
Rule
of
Court
is
to
give
Possession
.
If
one
recover
Rent
or
Common
,
Hab.
fac'
Possession
'
,
Rolls
Rep.
77.
Note
,
Error
was
of
a
Judgment
in
the
Kings-Bench
in
Ireland
,
and
Judgment
for
the
Defendant
was
reversed
,
and
Judgment
given
for
the
Plaintiff
,
quod
recuperet
terminum
suum
praed
.
how
awarded
into
Ireland
.
It
was
moved
how
Habere
fac'
possessionem
should
be
awarded
.
And
it
was
resolved
,
That
there
should
be
a
Writ
directed
to
the
Chief
Justice
in
Ireland
to
Reverse
that
Judgment
,
commanding
him
to
award
Execution
,
Cr.
Car.
511.
Mulcarry
and
Eyres
.
In
what
Cases
a
new
Habere
fac'
Possessionem
shall
be
granted
or
not
,
and
of
the
Sheriffs
demeanor
therein
.
Nota
pro
Regula
.
That
after
Habere
fac'
possessionem
executed
;
be
it
by
the
Sheriff
or
voluntary
delivery
of
Possession
,
if
the
Party
be
turned
out
again
by
the
Defendants
means
,
in
futuro
,
if
it
be
denied
a
new
Writ
may
be
had
.
But
after
the
year
there
must
be
a
new
motion
for
it
in
Court
:
With
this
agrees
Pearson
and
Tavernor's
Case
,
if
one
recovers
in
Ejectment
,
upon
which
the
Recoveror
was
put
in
Possession
Per
Habere
fac'
possession
,
and
after
the
Defendant
ousts
him
again
,
if
the
Writ
was
never
retorned
(
because
then
it
appears
nor
,
that
the
Plaintiff
was
ever
out
of
Possession
)
a
new
Writ
shall
be
granted
,
1
Keb.
779.
Ratliff
and
Tate
,
1
Keb.
785.
Lovelace's
Case
,
1
Rolls
Rep.
353.
Peirson
and
Tavernor's
Case
.
It
is
expresly
resolved
in
Dame
Molineux
and
Falgam's
Case
,
Palmer
p.
289.
If
Haber
e
facias
possessionem
go
to
the
Sheriff
,
Keb.
245.
Underhil
and
Devereux
.
Also
,
So
in
Stile
's
Case
,
2
Browl.
216.
Stiles
upon
a
Judgment
in
Ejectione
Firme
,
was
put
into
Possession
by
the
Sheriff
,
by
Habere
fac'
possessionem
,
and
after
the
Defendants
enters
again
,
and
the
Writ
was
returned
but
not
Filed
.
Per
Cur.
He
may
not
have
a
new
Writ
of
Execution
,
but
is
put
to
his
new
Action
,
and
the
Filing
of
the
Writ
is
not
material
,
for
it
is
in
the
Election
of
the
Sheriff
,
if
he
will
return
it
,
or
not
.
But
if
Execution
had
not
been
fully
made
,
as
in
case
of
persons
hiding
themselves
in
the
upper
Lofts
,
and
after
the
Sheriff
was
gone
,
they
outed
those
that
were
in
Possession
,
in
this
Case
a
new
Writ
of
Execution
was
awarded
.
But
by
the
Chief
Justice
,
if
the
Sheriff
put
a
Man
in
Possession
,
and
after
the
other
which
was
put
out
enter
forthwith
;
in
this
Case
the
Court
may
award
an
Attachment
against
him
for
contempt
against
the
Court
,
and
so
an
Attachment
was
awarded
upon
Affidavit
in
Gallop's
Case
,
2
Brownl.
253.
To
this
purpose
is
Upton
and
Well's
Case
,
1
Leon.
p.
145.
Upon
the
Habere
fac'
Possessionem
,
the
Shereiff
returned
that
in
the
Execution
of
the
said
Writ
,
he
took
the
Plaintiff
with
him
,
If
the
Sheriff
delivers
more
Acres
than
are
in
the
Writ
,
Upon
Ejectione
Firme
,
Sid.
351.
Okey
and
Vicars
.
Scire
fac
'
is
given
in
personal
Action
,
per
Stat.
W.
2.
where
the
remedy
was
after
the
year
to
commence
a
new
Action
on
the
same
Judgment
;
which
cannot
be
in
this
Case
as
to
Land
,
tho'
it
may
be
as
to
Damages
;
on
Judgment
for
Damages
,
Costs
or
Debt
,
there
must
be
a
Scire
fac
'
,
for
here
is
a
person
certain
charged
;
not
so
in
Hab.
fac
.
possessionem
,
2
Keb.
307.
Mesme
Case
;
but
the
Hab.
fac
.
Possessionem
,
shall
not
be
granted
an
year
after
the
Judgment
without
a
motion
in
Court
.
Siderf
.
pag.
224.
Note
,
It
was
a
Question
in
one
Hills's
Case
,
upon
the
Statute
of
Maintenance
:
A
Man
was
out
of
Possession
,
and
recovered
in
Ejectione
Firme
,
and
was
put
in
Possession
by
Habere
fac
.
possessionem
,
Whether
he
might
sell
presently
,
and
adjudged
he
might
,
God
.
b.
450.
Upon
the
Hab.
fac
.
possessionem
,
the
Sheriff
may
break
open
the
House
to
deliver
Possession
,
5
Rep.
91.
Return
de
Hab'
fac'
Possessionem
cum
Fieri
fac.
Virtute
istius
brevis
mihi
direct
'
24
die
Maij
anno
infra
scripto
Habere
feci
infra
nominat'
H.
H.
Possessionem
Termini
sui
infra
scripti
de
Tenementis
infra
script'
cum
pertin
ac
etiam
Fieri
feci
de
Terris
&
Catallis
infra
nominat'
W.
W.
20
s.
parcel
damnor
infra
script
&
denarios
illos
haber
coram
Justiciarijs
infra
script
ad
diem
&
Locum
infra
content
ad
reddend'
prefac
H.
prout
interius
mihi
precipitur
.
Of
Misdemeanors
in
Possession
.
In
Ejectment
Declarations
were
delivered
,
and
on
Verdict
Evidence
was
found
for
the
Plaintiff
against
some
,
and
Judgment
against
the
Casual
Ejector
for
others
,
in
the
whole
47
Houses
.
Upon
colour
of
Hab.
fac
.
possessionem
,
the
Sheriff
turns
out
of
Possession
these
47
Tenants
,
and
80
other
Tenants
also
without
any
Process
or
Plea
against
them
,
for
the
Execution
of
which
Writ
the
Sheriff
took
of
the
Plaintiff
200
l.
for
Fees
.
1.
The
Court
would
not
grant
any
.
Writ
to
supersede
this
Execution
against
the
80
,
for
if
so
then
it
ought
to
be
Quia
erronicè
,
and
there
was
not
any
Error
in
the
proceedings
against
them
,
because
there
was
no
proceedings
against
them
,
but
they
may
bring
Trespass
against
the
Sheriff
,
There
is
a
remarkable
Case
in
Siderf.
254.
the
King
against
Farr
.
Farr
being
a
Sollicitor
,
had
obtained
a
Judgment
against
the
Casual
Ejector
,
upon
which
he
Sues
Hab.
fac
.
possessionem
,
and
the
Sheriffs
Bay
liffs
enter
the
House
with
him
,
and
break
the
Door
where
the
Goods
were
,
and
take
the
Woman
to
whom
the
House
and
Goods
belonged
,
and
required
of
her
Special
Bayl
,
and
for
want
of
it
brought
her
to
Newgate
;
then
Farr
took
the
Goods
which
were
of
great
value
.
And
upon
Tryal
at
the
Old-Bayly
it
appeared
,
That
Farr
did
this
with
intent
to
take
away
the
Goods
,
and
had
no
colour
of
Title
to
the
House
for
his
Client
.
He
was
found
Guilty
of
Felony
,
and
was
hanged
,
not
being
able
to
Read
tho'
he
were
a
Sollicitor
.
The
Court
was
moved
for
an
Attachment
against
J.
upon
an
Affidavit
,
that
he
had
ejected
one
out
of
Possion
that
was
put
in
by
Hab.
fac
.
possessionem
,
and
that
in
a
very
Riotous
manner
,
and
had
imprisoned
the
Party
so
put
out
of
Possession
.
The
Council
on
the
other
side
answered
,
That
the
party
came
into
the
Land
by
vertue
of
an
Eigne
Judgment
,
and
an
Extent
upon
it
.
Rolls
,
here
is
Title
against
Title
,
therefore
take
your
Course
in
Law
,
for
we
make
no
Rule
in
it
,
Stiles
p.
318.
Fortune
and
Johnson's
Case
.
Verdict
for
the
Plaintiff
was
found
in
Ejectment
.
But
upon
Agreement
made
between
the
Plaintiff
and
Defendant
,
The
Defendant
was
to
hold
the
Land
recovered
,
for
the
remainder
of
his
Term
to
come
,
and
according
to
this
Agreement
he
held
it
for
two
years
;
but
afterwards
before
his
Term
expired
,
the
Plaintiff
takes
out
an
Hab.
fac
.
possessionem
and
executes
it
.
It
was
moved
,
That
the
Defendant
might
have
a
Rule
for
Restitution
.
Per
Cur.
it
cannot
be
:
Take
your
Action
on
the
Case
against
the
Plaintiff
,
for
not
performing
his
Agreement
,
Stiles
Rep.
408.
Wood
and
Markham
.
CHAP.
XV.
Of
Action
for
the
mean
Profit
's
.
In
whose
Name
.
What
Evidence
shall
be
given
in
this
Action
or
not
.
THe
Action
for
the
mean
Profits
on
the
Judgment
in
the
Ejectment
,
Keb.
731.
Sadler
and
Taylor
.
A
Tryal
at
Bar
was
prayed
in
Action
for
mean
Profits
.
But
the
Court
denied
it
,
because
how
good
a
Title
soever
the
Defendant
hath
,
he
cannot
give
in
Evidence
any
other
matter
than
what
was
before
Ruled
.
But
by
Twisden
the
Title
being
admitted
,
other
matter
may
be
given
in
Evidence
,
as
a
Release
or
Fine
by
the
Plaintiff
:
And
the
same
Law
is
in
Action
by
the
Lessor
,
in
the
former
Action
as
by
the
Lessee
,
and
against
the
Undertenant
,
or
any
that
claim
under
the
former
Defendants
Title
,
especially
the
contest
being
for
profits
during
the
time
of
the
former
Action
hanging
.
So
it
is
said
in
Harris
and
Wills's
Case
.
If
Recovery
be
in
Ejectione
Firme
,
and
after
Trespass
is
brought
for
the
mean
profits
before
the
Lease
,
nothing
shall
be
given
in
Evidence
,
but
the
value
of
the
Profits
and
not
the
Title
.
For
if
it
should
be
so
,
then
long
Tryals
would
be
infinite
.
Also
,
if
it
be
between
the
same
Parties
,
the
Record
is
an
Estoppel
;
so
the
Court
held
it
should
be
,
if
it
were
against
Undertenants
.
But
the
Court
granted
a
Tryal
at
Bar
,
in
assurance
they
would
not
insist
upon
the
Points
formerly
adjudged
,
but
admit
it
,
and
insist
upon
new
Title
,
Siderf
.
p.
239.
Collingwood's
Case
.
In
1
Will
.
and
Mary
,
The
Court
was
moved
to
set
aside
a
Verdict
,
recovered
in
an
Action
for
the
mean
profits
after
Recovery
in
Ejectment
,
shewing
that
the
Defendant
in
the
Ejectment
had
brought
another
Ejectment
since
,
and
recovered
;
so
that
the
first
Recovery
was
disaffirmed
,
and
therefore
there
ought
to
have
been
no
Recovery
for
the
mean
profits
,
but
the
motion
was
denied
,
per
tot
.
Cur.
2
Ventris
Reports
.
Trespass
lies
by
Recoveror
in
Erroneous
Judgment
for
a
mean
Trespass
;
because
the
Plaintiff
in
Writ
of
Error
recovers
all
mean
profits
,
and
the
Law
by
fiction
of
Relation
,
will
not
make
a
wrongdoer
dispunishable
,
13
Rep.
22.
But
contra
,
where
Act
of
Parliament
restores
.
In
Trespass
with
continuando
to
recover
mean
profits
,
an
Entry
and
Possession
of
the
Land
before
the
Trespass
must
be
proved
;
and
also
,
another
Entry
after
the
Trespass
.
Lessor
is
the
principal
Person
lookt
upon
in
the
Law
to
Sue
for
the
mean
profits
,
2
Keb.
794.
A
Termor
being
Outlawed
for
Felony
,
granted
his
Term
and
Interest
to
the
Plaintiff
,
who
is
put
out
by
J.
S.
and
after
the
Outlawry
is
reversed
;
and
the
Plaintiff
brought
Trespass
for
the
profits
taken
between
the
Outlawry
Reversed
and
the
Assignment
;
adjudged
,
that
the
Action
did
lie
;
for
tho'
during
that
time
that
the
Queen
had
the
Interest
,
and
the
Assignee
had
Right
,
yet
by
the
reversal
it
is
as
if
no
Outlawry
had
been
,
and
there
is
no
Record
of
it
,
Cr.
Eliz.
270.
Ognells's
Case
.
It
was
held
by
Justice
Vernon
,
where
a
Man
would
recover
the
mean
profits
in
Trespass
,
he
must
prove
Entry
into
every
parcel
,
and
not
into
one
part
in
the
name
of
all
.
An
Action
of
Trespass
came
to
Tryal
before
T.
for
recovering
the
mean
profits
,
and
the
Trespass
was
laid
the
11
of
May
with
a
continuation
,
and
the
first
Entry
was
before
the
17
Day
;
And
an
Ejectment
had
been
brought
of
this
Land
the
same
Assizes
,
and
because
a
second
Entry
is
required
to
recover
the
mean
profits
,
the
which
if
it
shall
be
,
will
happen
after
that
time
which
he
hath
acknowledged
himself
out
of
Possession
,
by
his
Action
of
Ejectment
,
and
such
Entry
will
abate
the
Action
;
it
was
directed
to
find
Damages
for
the
first
entry
only
.
It
is
a
Rule
in
Law
:
By
the
Re-entry
of
the
Disseisee
,
he
is
remitted
to
his
first
Possession
,
and
is
as
if
he
had
never
been
out
of
Possession
;
and
then
all
who
Occupied
in
the
mean
time
,
by
what
Title
soever
they
come
in
,
shall
Answer
to
him
for
their
time
,
as
if
a
Disseisor
had
been
Disseised
by
another
:
The
first
Disseisee
Re-enters
,
he
shall
in
Trespass
punish
the
last
Disseisor
;
otherwise
,
after
his
Re-entry
he
should
have
no
remedy
for
his
mean
profits
.
Note
,
In
Trespass
for
mean
profits
Special
Bail
is
always
given
,
1
Keb.
100.
Writ
of
Enquiry
for
mean
profits
abates
by
Death
after
Judgment
,
Orpwood
,
3
Keb.
205.
Where
one
Declares
on
a
Fictitious
Lease
to
A.
It
s
a
note
in
Siderf
.
p.
210.
If
one
Recover
and
had
Judgment
in
Ejectione
Firme
,
according
to
the
usual
practice
,
by
confessing
Lease
,
Entry
and
Ouster
,
&c.
it
was
a
doubt
by
the
Court
,
if
upon
such
Confession
,
Lessee
may
have
Trespass
for
the
mean
profits
,
from
the
time
of
the
Entry
confessed
;
for
it
seems
it
is
an
Estoppel
,
between
the
Parties
to
say
,
That
he
did
not
enter
.
Tamen
Quaere
,
because
this
Confession
is
taken
to
Special
purpose
only
,
Siderf
.
p.
210.
If
a
Writ
of
Error
in
Ejectment
abates
by
the
Act
of
God
,
a
second
Writ
shall
be
a
Supersedeas
.
Aliter
,
where
it
abates
by
the
Act
of
the
Party
,
1
Vent
.
353.
Judgment
in
Ejectment
.
The
Defendant
(
Plaintiff
)
brings
a
Writ
of
Error
.
The
Plaintiff
who
is
Defendant
in
the
Writ
of
Error
,
brings
a
Scire
fac
.
Quare
Executionem
non
.
To
the
intent
the
Defendant
,
Plaintiff
in
Error
might
assign
Errors
.
To
which
the
Plaintiff
in
Error
pleads
,
That
the
Defendant
ought
not
to
have
Execution
,
because
he
was
in
Possession
already
,
by
vertue
of
Hab.
fac
.
possessionem
.
Per
Cur.
It
s
a
trick
for
delay
,
The
Scire
fac
.
being
only
to
the
intent
,
that
the
Defendant
may
assign
Errors
,
and
there
can
be
no
such
Plea
to
it
in
stay
or
delay
of
Execution
,
1
Keb.
613.
Winchcomb's
Case
.
CHAP.
XVII
.
Writ
of
Error
.
Where
it
lies
.
Of
what
Error
the
Court
shall
take
Conisance
without
Diminution
or
Certificate
.
Variance
between
the
Writ
and
Declaration
.
Variance
between
the
Record
and
the
Writ
of
Error
.
One
Defendant
dies
after
Issue
and
before
Verdict
.
Non-age
in
Issue
on
Error
where
to
be
tried
.
Amendment
of
the
Judgment
before
Certiorari
unaided
.
Release
of
Errors
from
one
of
the
Plaintiffs
in
the
Writ
of
Error
,
bars
only
him
that
released
it
,
and
why
.
Outlawry
in
one
of
the
Plaintiff
pleaded
in
Error
.
Of
Release
of
Errors
by
casual
Ejector
.
ERror
lies
in
B.
Wales
,
per
Stat.
27
H.
8.
Error
in
Real
Actions
shall
be
reversed
in
B.
R.
and
in
personal
Actions
by
Bill
before
the
President
and
Council
of
the
Marches
;
ut
supra
,
Moor
p.
248.
no
391.
Writ
of
Error
lies
in
the
Exchequer-Chamber
upon
a
Judgment
in
a
Scire
fac
'
in
Ejectione
,
Sid.
Crook
Car.
286.
Lessor
or
Lessee
may
have
a
Writ
of
Error
on
Judgment
in
Ejectione
,
Sid.
317.
In
a
Writ
of
Error
upon
a
Judgment
in
Banco
in
Ejectione
Firme
,
sans
Certificate
.
is
certified
a
brief
Entry
of
the
Writ
according
to
the
Course
there
,
and
then
the
Declaration
at
large
,
and
by
the
Recital
of
the
Writ
which
mentions
that
the
Action
is
brought
de
Rectoria
de
D.
viginti
Acris
terrae
&
duodecim
Acris
prati
cum
pertinentiis
in
D.
And
the
Declaration
is
of
a
Lease
by
Indenture
of
the
said
Rectory
and
Tenements
cum
pertinentiis
(
excepta
terra
pro
mensa
Vicarij
ibidem
cum
omnibus
talibus
easiamentis
quales
Vicarius
adtunc
habuit
cum
omnibus
talibus
decimis
,
&c.
)
And
upon
Not
guilty
a
Verdict
and
Judgment
was
for
the
Plaintiff
,
and
assigned
now
for
Error
,
That
Judgment
was
given
pro
Querente
;
whereas
it
ought
to
to
be
for
the
Defendant
.
And
after
in
nullo
est
erratum
pleaded
,
it
was
moved
for
Error
,
That
it
appears
by
the
Record
certified
,
that
the
Writ
is
general
of
a
Rectory
,
and
the
Declaration
is
of
a
Rectory
with
certain
Exceptions
.
Pas.
11
Car.
B.
R.
Gregory
and
Shepard
on
a
Lease
made
by
the
Dean
and
Chapter
of
Peterborough
.
Error
upon
a
Recovery
in
Ejectment
out
of
the
Court
of
Durham
.
The
Error
assigned
was
the
Infancy
of
the
Plaintiff
in
the
Ejectment
,
who
appeared
by
Attorney
where
he
ought
to
have
appeared
by
his
Guardian
;
and
upon
Issue
joyned
on
the
Infancy
,
it
was
found
for
the
Plaintiff
in
the
Writ
of
Error
.
But
this
Writ
of
Error
was
not
sufficient
to
the
Court
to
proceed
to
the
Reversal
.
viz.
)
Respons
'
of
the
Commissioners
is
by
the
Bishop
and
five
others
only
,
without
making
mention
of
the
sixth
Commissioner
,
Yelv.
p.
211.
Ode
and
Moreton
.
2
Rolls
Abr.
604.
In
Ejectment
Verdict
was
given
pro
Quer'
quoad
ill'
parcel'
Messuagij
praedict'
jacen'
proxim'
ad
Messuag'
modo
F.
N.
continen'
ex
Boreal'
parte
,
&c.
&
quoad
resid'
pro
Def.
and
the
Judgment
was
,
quod
Quer'
recuperet
terminum
suum
praedict'
de
C.
in
praedict'
parcel
'
praedicti
Messuagij
jacen'
proxim'
ad
praedict'
Messuag'
ut
praefertur
in
occupatione
praedicta
F.
N.
&
continen'
;
whether
this
Variance
between
the
Verdict
and
Judgment
be
Error
.
Adjournat'
Qu.
if
it
be
not
a
Jeosayl
deins
Art
.
Stat.
16
,
17
Car'
2.
c.
8.
Raym.
p.
398.
Norris
and
Bayfeild
.
Ejectione
Firme
against
two
,
p.
767.
1
Rolls
Abr.
756.
Tiffin
and
Lenton
.
If
A.
bring
Ejectione
Firme
against
B.
and
C.
and
after
Issue
joyned
B.
dies
,
and
after
upon
the
Hab.
Corpora
,
which
mentions
the
Issue
to
be
between
A.
of
the
one
part
,
and
the
said
B.
and
C.
a
Verdict
is
given
against
B.
and
C.
that
they
are
guilty
,
and
Damages
against
them
;
but
a
Surmise
is
made
of
this
before
Judgment
,
and
so
Judgment
given
only
against
C.
this
is
not
erroneous
,
altho'
the
Verdict
was
against
both
,
in
as
much
as
the
Judgment
was
only
against
him
who
was
in
life
,
1
Rolls
Abr.
767.
Tiffin
and
Lenton
.
If
A.
Ejectione
Firme
in
D.
upon
which
B.
brought
a
Writ
of
Error
in
B.
R.
at
Westminster
and
discontinues
it
,
and
after
there
brought
a
new
Writ
of
Error
,
quod
coram
vobis
residet
,
and
assigns
for
Error
,
That
the
said
A.
at
the
time
of
the
Tryal
of
the
first
Action
was
commorans
and
within
Age
,
at
Westminster
in
Middlesex
,
and
that
he
sued
in
the
said
Action
by
Attorney
;
and
upon
the
Nonage
the
Parties
are
at
Issue
;
this
shall
be
tried
in
Westminster
,
and
not
in
D.
where
the
Land
lies
,
because
the
Ejectione
Firme
is
not
any
real
Action
;
and
in
as
much
as
it
is
specially
alledged
that
he
was
within
Age
and
commorans
at
Westminster
when
the
Writ
of
Error
was
brought
,
2
Rolls
Abr.
p.
604.
Orde
and
Moreton
.
Error
of
a
Judgment
in
Ireland
in
Ejectment
was
assigned
,
Car.
2.
c.
8.
vide
3
Keb.
384.
D.
of
Albermarl
and
Keneday
.
In
Ejectment
one
of
the
Defendants
pleaded
Not
guilty
,
and
Verdict
for
the
Plaintiff
against
both
,
and
Judgment
accordant
.
Error
was
brought
,
because
in
the
Venire
Constantinus
Callard
was
retorned
,
and
so
named
in
the
Distringas
;
Constantius
Callard
was
retorned
and
sworn
,
and
so
was
retorned
by
that
name
on
the
back
of
the
Postea
;
this
was
held
manifest
Error
;
for
they
be
distinct
Names
of
Baptism
,
and
cannot
be
amended
;
but
Curia
advisare
from
Hillary
Term
till
Pasche
;
in
the
mean
time
the
Defendant
in
the
Writ
of
Error
obtained
a
Release
of
all
Errors
from
one
of
the
Plaintiffs
in
the
Writ
of
Error
,
and
the
first
day
of
Term
Pasch
.
pleaded
it
in
Bar
as
a
Plea
puis
darrein
Continuance
;
and
thereupon
a
Demurer
was
entred
in
the
Names
of
both
the
Plaintiffs
in
the
Writ
of
Error
;
in
nullo
est
erratum
being
pleaded
before
,
there
could
not
now
be
any
Summons
and
Severance
.
Per
Curiam
this
Release
shall
bar
him
only
that
released
it
,
and
not
the
other
Plaintiff
(
though
the
Action
was
in
the
personalty
:
)
For
the
Plea
being
by
way
of
Action
,
to
discharge
themselves
of
Damages
which
were
recovered
against
them
,
and
to
be
restored
to
the
possession
which
was
lost
by
the
first
Judgment
;
and
they
being
joyned
in
the
first
Action
by
the
Act
of
the
Plaintiff
,
and
their
own
voluntary
Act
,
it
is
not
reason
that
the
Act
of
one
shall
charge
or
prejudice
the
other
.
But
otherwise
if
they
had
been
Plaintiffs
in
the
Record
by
their
own
Act
,
Cro.
Jac.
116.
Blewit
and
Snedstow
.
Verdict
was
pro
Quer
'
for
10
Messuages
,
15
Acres
of
Land
,
15
Acres
of
Meadow
and
20
Acres
of
Pasture
,
and
as
to
the
Residue
Non
Culp
.
And
the
Judgment
was
,
That
the
Plaintiff
should
recover
the
Messuages
and
the
greater
Quantity
of
Acres
which
were
in
the
Verdict
.
Upon
which
the
Plaintiff
brought
a
Writ
of
Error
,
and
assigned
Errors
,
and
had
a
Scire
fac
.
and
before
the
Defendant
in
the
Writ
of
Error
joyned
in
nullo
est
erratum
,
it
was
moved
in
Common
Bench
for
amendment
of
the
Judgment
.
It
was
objected
.
1.
That
the
time
after
the
Assignment
of
the
Error
was
past
for
the
amendment
.
Per
Cur.
The
time
is
not
past
,
so
long
as
a
Diminution
may
be
alledged
,
or
a
Certiorari
awarded
,
it
may
be
amended
.
2.
The
Judgment
is
the
Act
of
the
Court
,
and
therefore
may
not
be
amended
.
Per
Cur.
It
is
the
default
of
the
Clerk
,
who
did
not
enter
the
Judgment
according
to
the
Verdict
,
Jones
Rep.
p.
9.
Ejectione
Firme
by
two
against
one
Defendant
.
And
on
Not
guilty
,
Verdict
for
the
Plaintiff
.
The
Error
assigned
was
,
because
Constantinus
Callard
was
returned
,
and
so
named
in
the
Distringas
,
but
in
the
Pannel
annext
thereto
by
the
Sheriff
,
Constantius
Callard
was
Returned
and
Sworn
,
puis
darraine
Continuance
;
and
thereon
a
Demur
entred
in
the
name
of
both
the
Plaintiffs
in
the
Writ
of
Error
.
For
in
nullo
est
erratum
being
pleaded
before
,
there
could
not
be
any
Summons
and
Severance
.
Per
Cur.
This
Release
shall
bar
only
him
that
Released
it
,
for
the
Plea
being
by
way
of
Action
to
discharge
themselves
of
Damages
,
which
were
recovered
against
them
,
and
to
be
restored
to
the
Possession
which
was
lost
by
the
first
Judgment
;
and
they
being
joyned
in
the
first
Action
,
by
the
Act
of
the
Plaintiff
,
and
not
by
their
own
voluntary
Act
,
it
is
not
Reason
,
that
the
Act
of
one
should
charge
or
prejudice
the
other
,
for
then
by
such
practice
any
one
might
be
charged
,
and
should
have
no
remedy
to
discharge
himself
.
And
the
Judgment
was
reversed
,
quoad
him
that
did
not
Release
,
and
that
he
should
be
restored
to
all
what
he
lost
,
and
quoad
the
other
who
released
,
that
he
should
be
barred
in
his
Writ
of
Error
,
Cro.
Jac.
116.
Bluit
and
Snedstow
,
2
Rolls
Ab.
411.
Mesme
Case
.
So
the
Defendant
in
the
Writ
of
Error
Pleads
Outlawry
in
one
of
the
Plaintiffs
.
Per
Cur.
It
s
no
Bar
,
because
this
is
an
Action
not
to
recover
any
thing
,
but
to
restore
them
to
what
they
had
lost
,
and
to
discharge
them
of
Damages
and
Fines
;
and
they
are
forced
to
joyn
,
because
one
of
the
Plaintiffs
was
a
Defendant
in
the
former
Action
,
Cro.
Jac.
616.
Bythell
and
Harrts
.
Error
without
Bail
is
a
Supersedeas
in
Ejectment
,
Car.
2.
c.
2.
being
not
within
the
general
word
Trespass
,
1
Keb.
308.
Lufton's
Case
.
And
unless
all
the
Defendants
in
Ejectment
do
give
Recognizance
,
it
s
no
Supersedeas
,
for
as
to
the
Land
its
intire
,
3
Keb.
138.
Cole
and
Levingstone
.
Baron
seised
in
the
Right
of
the
Feme
,
makes
an
Ejectment
Lease
,
and
the
Lessee
brings
an
Action
upon
it
,
and
hath
a
Verdict
and
Judgment
;
it
s
not
Error
to
alledge
the
death
of
the
Wife
before
Judgment
,
by
which
the
interest
of
the
Husband
,
and
Lease
by
him
made
to
the
Plaintiff
determines
,
because
neither
the
Wife
nor
the
Husband
are
Parties
to
the
Action
,
and
this
determins
upon
the
Title
to
the
Land
;
for
the
Plaintiff
may
say
,
That
the
Husband
was
seised
in
his
own
right
,
1
Rolls
Abr.
768.
Wilks
and
Jordan
.
Error
was
brought
to
Reverse
a
Judgment
in
Ejectione
Firme
,
Per
Cur.
The
Issue
is
well
joyned
,
and
the
Judgment
shall
be
reversed
for
this
Error
without
Scirc
fac
.
against
the
Executors
,
for
until
the
Issue
tried
none
can
deny
,
but
that
the
appearance
was
good
.
But
the
surer
way
had
been
for
the
Attorney
to
have
pleaded
quod
venit
pro
magistro
suo
D.
and
not
qd.
D.
venit
per
Attornat
.
Siderf
.
p.
93.
Dove
and
Darcen
.
If
a
Man
recover
in
Ejectione
Firme
,
Rolls
Abr.
742.
Hide
and
Markham
.
But
in
1
Rolls
Abr.
768.
If
a
Man
brings
Ejectione
Firme
in
B.
R.
and
there
he
hath
a
Verdict
on
Tryal
at
the
Bar
,
and
after
,
and
before
Judgment
he
dies
,
Lessor
of
the
Plaintiff
in
Ejectment
,
Ejectione
Firme
,
Siderf.
317.
Cole's
Case
.
Release
of
Error
,
vid.
supra
.
The
Issue
was
that
H.
who
was
casual
Ejector
,
and
gave
Release
of
Errors
,
was
not
the
same
Person
.
Being
tried
,
The
Court
would
not
suffer
the
Defendant
to
Assign
Error
,
but
conceived
he
was
barred
now
,
1
Keb.
755.
Keyes
and
Bredon
.
The
Defendant
obtains
a
Release
of
his
casual
Ejector
,
per
Cur.
It
ought
to
be
set
aside
,
and
the
Error
Assigned
,
1
Keb.
705.
vid.
7.
Release
by
Casual
Ejector
is
a
fraud
.
The
Court
conceived
a
Release
of
Errors
,
Keb.
740.
Keys
and
Bredon
.
The
Case
was
,
As
it
is
Reported
in
Raymond
,
93
,
Keyes
and
Bredon
.
The
Plaintiff
obtains
a
Judgment
against
his
own
Ejector
,
in
a
Case
where
an
Infant
was
in
Possession
;
and
the
Party
concerned
in
the
Lands
,
Per
Cur.
Such
Release
shall
not
be
allowed
.
And
the
Court
will
not
permit
the
Party
to
proceed
to
try
the
Issue
,
if
the
Release
be
good
or
not
,
because
it
is
to
Bar
the
Right
of
a
third
person
.
On
Ejectment
after
Judgment
against
Casual
Ejector
,
for
not
confessing
Lease
,
Entry
and
Ouster
;
the
Defendant
in
the
Ejector's
name
brought
a
Writ
of
Error
,
non
Pros
.
may
be
entred
,
as
is
the
usual
Course
in
such
Case
,
2
Keb.
579.
M.
21.
Car.
2.
Wats
and
Loyd
.
In
the
Lord
Byron
and
Sir
William
Juxon's
Case
,
Council
prayed
leave
to
discontinue
a
Writ
of
Error
brought
in
the
Ejector's
name
,
of
Judgment
in
the
County
Palatine
of
Lancaster
against
him
by
default
,
shewing
a
Release
of
Errors
by
the
Casual
Ejector
:
But
the
Court
denied
it
,
but
left
them
to
Non
-
suit
the
Plaintiff
in
Error
,
2
Keb.
853.
A
Release
of
Error
by
the
Causual
Ejector
,
no
Discontinuance
in
Error
,
2
Keb.
853.
Ejectment
was
brought
against
eight
Defendants
in
B.
C.
Error
was
brought
,
grounded
upon
the
Judgment
,
and
the
Writ
was
ad
grave
damnum
ipsorum
,
and
the
Judgment
was
only
against
three
,
and
other
five
were
acquitted
,
The
Error
was
assigned
in
the
Non-age
of
the
three
.
Per
Cur.
The
Writ
of
Error
was
good
,
tho'
it
might
be
also
ad
damnum
of
those
convicted
.
But
being
only
in
the
nature
of
a
Commission
,
whereby
the
King
Commands
the
Errors
to
be
examined
;
this
matter
is
not
material
,
Hob.
70.
Yelv.
209.
By
Twisden
,
The
constant
practice
is
for
all
to
joyn
,
and
per
tot
.
Cur.
Judgment
ought
to
be
reversed
against
all
.
Error
of
a
Judgment
in
Ejectione
Firme
,
and
in
the
Record
a
space
was
left
to
insert
the
Costs
which
had
not
been
taxed
,
if
such
an
imperfect
Record
be
certified
;
yet
it
might
be
amended
by
Rule
of
Court
there
,
and
then
if
it
be
removed
by
Error
,
the
Court
there
must
amend
it
.
For
it
is
the
constant
practice
,
That
if
a
Record
be
removed
into
the
King's
Bench
,
out
of
the
Court
of
Common
Pleas
by
Writ
of
Error
,
and
afterwards
amended
by
Rule
of
Court
in
the
Common
Pleas
,
The
Court
of
King's
Bench
must
amend
it
accordingly
,
vid.
Hard.
p.
905.
1
Ventr
:
165.
Bell
and
Richards
.
Ejectment
was
brought
in
C.
B.
in
Ireland
,
and
declares
against
Commyn
de
Castrovilla
&
Terris
de
Kilborough
,
in
such
a
County
.
The
Plaintiff
had
Verdict
and
Judgment
.
Commyn
brought
a
Writ
of
Error
in
B.
R.
in
Ireland
,
B.
R.
in
England
.
And
the
Judgment
given
in
B.
R.
in
Ireland
was
reversed
here
,
for
the
matter
was
discontinued
.
Because
the
Defendant
in
Ireland
concludes
al
pais
,
where
in
truth
the
matter
of
his
Plea
should
be
tried
by
the
Record
,
and
the
Plaintiff
in
Error
doth
not
Reply
,
or
Demurr
upon
the
Plea
of
the
Defendant
,
and
so
all
is
discontinued
.
Also
,
there
was
another
apparent
Error
in
the
Declaration
,
viz.
the
Action
brought
de
castro
villa
&
terris
in
Kilborough
,
without
expressing
the
number
and
certainty
of
Acres
,
and
upon
such
general
demand
no
Habere
fac'
Possessionem
can
be
awarded
and
executed
,
Yelv.
117.
St.
John
vers
.
Commyn
.