THE LAW OF EJECTMENTS, OR, A TREATISE SHOWING The Nature of EJECTIONE FIRM, the Difference between it and Trespass, and how to be brought or removed where the Lands lie in Franchises. In what Cases this Action lies, or not. Of the Old Way of Sealing Leases, and of the New Practice. Of Confessing Lease, Entry and Ouster. Of what things Ejectione Firm lies, or not. Of Declarations in this Action, and what Special Plead are now in use. Of Venues, Issue, Trial.  
As also Who are good Witnesses or not in the Trial on Ejectment, and what shall be allowed good Evidence or not, either as to Records, or Matters in Fait. Where Bills, Answers and Depositions shall be read on a Trial or not, Together with The Learning of Special Verdicts at large, relating to Titles of Land and Estates in several Rules, and of Judgements with their several Forms of Entries in Special Cases, and of Habere facias possessionem, how to be executed, and in what Cases a new Habere fac' possessionem shall be granted. And lastly, of Erroneous Judgements and Writs of Error; and several other Matters, all relating to Actions of Ejectments.  
Very necessary for all Lawyers, Attorneys, and other Persons, especially at the Assizes, etc.  
LONDON, Printed for john Deeve at Bernards-Inn Gate in Holbourn. 1700.   

THE PREFACE TO THE READER.  
UPon the first View of the Title of this Treatise, I doubt not but many Persons will slight it, being upon a Topick well known and understood (as they imagine) by even every Pretender to the Law: There's not the least Solicitor or Attorney in any Nook of Cornwall, or Corner of Cumberland, but thinks he is privy to the whole Learning of Ejectments. And yet if they would take the Pains to peruse the ensuing Sheets, they doubtless may be of another Opinion, and will find very useful and proper Matter relating to an Action which concerns the greatest Titles in the Kingdom, and has made so great a Noise at the Bar, and in the Circuits for Sixty Years last passed.  
Besides, if there happen any material Mistake in this Action, the Remedy is very chargeable. I remember Mr. Levett's Case of the Inner-Temple (the Argument whereof made by a very Ingenious Professor of the Law, I have herein inserted.) The Record was an Issue of Trinity Term 1696. and the Demise is laid the 10th of April 1697. Habendum from the 25th day of March than last passed; whereas the Demise should have been laid the 10th of April 1696. And tho' Mr. LeveTt had a Verdict; yet he could not have Judgement, but was forced to a new Trial at Bar. And many more such Instances might be given.  
I shall not dare to deliver my Opinion concerning the Change of Real Actions into Ejectione Firm, but I know many Grave Lawyers have grumbled at the Inconveniencies of a Man's being too obnoxious to be tricked out of Possession.  
However, this we must all allow, That since the said Alteration, the Common Law hath lost a great Part of the Beauty and Nicety of its Pleading.  
I have been large under two of the ensuing Titles; I mean that of Evidence, and the other of Special Verdicts; Who shall be allowed as good Witnesses, or not; and what shall be looked upon as sufficient Evidence both as to Matter of Record, or Matter en Fait, in this Action, is of great Use to be understood; and the Cases that lay dispersed in our Books for that purpose, I have reduced to some Method.  
And as for the right and exact drawing of Special Verdicts, we all own it to be an undeniable Argument of a good Understanding in the Law, and of very great Consequence, especially those which concern Title of Lands and Estates.  
As for the Erratas of the Printer, the Judicious Reader will find that they will not much interrupt the Sense; and as for my own I humbly beg Pardon.   

THE CONTENTS OF THE CHAPTERS.  

CHAP. I. THE Nature of the Action of Ejectione Firm, and the Reason of the change of Real Actions into Ejectments, with the Lord Chancellor Ellesmore's Opinion thereon. The Difference between Actions of Trespass and Ejectment in seven Diversities. The Difference between Ejectione Firm and Quare ejecit infra terminum. In what Court this Action to be brought, or not. Ejectments how to be brought in respect of the Place where the Lands lie. Where to be tried. Of Removal by Procedendo into inferior Courts.  
CHAP. II. Who shall have Ejectione Firm, 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 Copyholder, and how, and whether before Admittance, and the manner of declaring. Of Ejectment by Executors, by Infant, by Lessee of a 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 and on Judgement against the Principal, by Issue in Tail liable to a Statute, who comes not in and pleads to the Sc' fac ', on Entry of the Grantee of Rent with Proviso for Retainer till Satisfaction of Arrears; by Cesty que Trust; by Vendee of Commissioners of Bankrupts.  
CHAP. III. Of Process in Ejectione Firm. Of 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. Of Amendments of Originals. Where Amendment shall be by the Paper-Book. Of the return by 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 Stat. 13 Car. 2. c. 2. Of Bail on Writ of Error. When common Bail to be filled. Imparlance.  
CHAP. IU. Against whom Ejectione Firm lies, or not, Of the casual Ejector. Of the old way of Sealing Leases of Ejectment, and in what Cases now to be used. And of the new way of practice.  
CHAP. V. Of the Rule of confessing Lease, Entry and Ouster. Whether such Rules may be made in inferior Courts. Rules of Court relating to confessing Lease, Entry and Ouster. 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; of enlarging the Ejectment, Lease.  
CHAP. VI Of what things an Ejectione Firm may be brought, and of what not. General Rules of Declarations in Ejectments. Of Variance between the Issue-Roll and the Imparlance-Roll. Of Entry and Ejectment supposed before the Commencement of the Lease. Virtute cujus He entered, how expounded. Uncertainty in the Limitation of the Commencement, and no Day of the Date shown. Et postea how expounded. Mr. Levets of the Temple's Case. Argued about amendment of a Declaration. Declaration by Coheirs, by Tenants in Common, by Baron and Feme. By joint-tenants, by a Corporation, by Copyholder, by Administrator.  
CHAP. VII. Where in the Declaration a Life must be averred, and where it need not. Of Delivery of Declarations at or after the Essoyn-day. Declations when to be entered, as of the same Term; where the Copies need not to be paid for Declarations, when amendable or not. Of expressing the Vills where the Lands lie. Of the Pernomen. If it need to be of more Acres than the Plaintiff was ejected out of. Of the Forms of the Declaration, Vi & Armis omitted, Extr. tenet. omitted. The Precedent of Declarations in B. C. in B. R. and in the Excheq. The Endorsement of the Copy left with the Tenant, and what the Tenant is to do thereupon: The Rule of confessing Lease, Entry and Ouster in C. B. and B. R. Affidavit in Ejectment to move for Judgement against the Casual Ejector.  
CHAP. VIII. What shall be a good Plea in Abatement in this Action. Of Entry of the Plaintiff hanging the Writ. Entry after Verdict, and before the day in Bank. After Imparlance no Pleading in Abatement, and why. Abatement, because the Plaintiff shows 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 Cinque Ports to be made. Ancient Demesne a good Plea in Ejectment, and why. It's a good Plea after Imparlance, 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 Assizes is resceivable, and the Consequence of a Demurrer to this Plea. Release of one of the Plaintiffs in a Writ of Error, whom it shall bar. Of Release puis darrein Continuance, Plaintiff demurs to Plea of Entry puis darrein Continuance, Quid Sequitur. Accord and Satisfaction pleaded. Aid prior, and why the Defendant shall not have Aid pryer of the King, aliter of a common Person; A Writ not to proceed Rege inconsulto allowed. Recovery and Execution in a former Action pleaded in Bar. Bar in one Ejectione Firm, how a Bar in another.  
CHAP. IX. Of Challenge. What is principal Challenge 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 was Cousin to one of the Defendants. A Venire de Foresta. Venire de Novo for Baron and Feme.  
CHAP. X. XI. Of Joining Issue and Trial. In what Case no Verdict shall be Entered. One Defendant Pleads Not guilty, the other Demurs, no Judgement upon the Demurrer till the Issue be tried. Writ to Prohibit the Trial Rege inconsulto. Trial in the Marches Consent to alter the Trial. New Trial denied. Of consent to a Trial in a Foreign County. Of Trial in other County than where the Land lies. Of Trial by Mittimus in the County Palatine. Who shall be good Witnesses in this Action or not. Copy of a Deed. Deed canceled. Conditions, Collateral Warrants found by a Jury. What is good Evidence in Reference to a former Mortgage. Where the probate of a Will is sufficient Evidence or not. In Case of a Rectory, what is good Evidence, and what things the PaRson must prove. Ancient Deeds. Scirograph of a Fine. Constant Enjoyment. Evidence as to an Appropriation. Deposition of Bankrupts. Depositions in Chancery. Transcript of a Record. Inrolment of a Deed. Doomsday Book. Of variance between the Declaration and the Evidence. Of Demurrer to an Evidence. ExEmplification of a Verdict.  
Verdict. Of a General Verdict. Of Special Verdict. Of Council subscribing the Points in Question. Of finding Deeds in haec verba. Eight Rules of Special Verdicts in Ejectment. Of Estoppels found by the Jury, and how they shall be binding. What is a material variance between the Declaration and the Verdict. Of Priority of Possession. Where the Special conclusion of the Verdict shall aid the imperfections of it. Where and in what Cases the Verdict makes the Declaration good. Verdict Special taken according to intent. Difference where the Verdict concludes Specially in 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 Special Verdicts. Of the finding Quoad residuum, certainty or uncertainty in reference to Acres, Parishes, Vills and time of Verdicts, 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. Where a Verdict shall be good for part, and void for the Residue. The time of the Entry of the Plaintiffs 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 Verdicts may be amended. Where the Jury may conclude upon a Moiety or not. Where a dying Seized or Possessed, must be found. Where the commencement of an Estate Tail is to be found.  
CHAP. XII. Where the Defendant shall have Costs. How the Plaintiff may aid himself by Release of Damages. Executor not to pay Costs. Lessor of the Plaintiff where to pay Costs. Where Tenant in Possession liable to pay Costs or not. Feme to pay Costs on the Death of her Husband. Infant, Lessor to pay Costs of the Writ of Enquiry; the Entry. If Writ of Error lies upon the Judgement, before the Writ of Enquiry and why. Writ of Enquiry how abated. Costs for want of Entering, Continuances. Where the sole remedy for Costs in the first Trial is to be had.  
CHAP. XIII. The Form of entering Judgements in this Action. How the Entry is, when part is found for the Plaintiff, and part against him. Qd. Def. sit quietus. Quod Def. remaneat indefenss. Against several Ejectors of form. Of the Entry in case of the Plaintiff or Defendant. One of the Plaintiffs died during a Curia advisare vult. If the Death of one Defendant shall abate the Writ. One Defendant dies after Issue joined. After Verdict and before Judgement the Plaintiff dies. What Notice the Court takes of the Lessor of the Plaintiff. Ejectment for the whole, and a Title but for a Moiety, how Judgement shall be. In what Cases, and for what Causes Judgement in Ejectments are Arrestable as Erreneous. Judgement for the whole, where it ought to be for a Moiety. More Damages found than the Plaintiff Counts. Judgement against Guardian and Infant. Not severing entire Damages. Against Baron and Feme quod capiantur, Vi & Armis omitted in the Declaration. Plaintiff brings a Writ of Error, and the Judgement is reversed, what Judgement he shall have. What Judgement shall be, if the Lease expires before Judgement. In what Cases Judgements shall be amended. Mistakes of Acres. Omission, Defalts of Clerk. Variance of parcel. If Scire facias on a Judgement in Ejectment may be brought by the Administrator of the Lessee. No Judgement upon Nihil dicit, but upon motion in Court of Judgement given against ones own Ejector in several good Cases, and of a Practice to gain Possession.  
CHAP. XIV. Habere facias Possessionem, how to be executed, and when, and in what Cases a new Habere facias Possessionem is to be granted or not. The manner how the Sheriff is to deliver Possession. How the Sheriff is to esteem the Acres. How the Sheriff is to give Possession of Rent or Common. How Habere facias Possessionem awarded into Ireland. In what Cases a new Habere facias Possessionem, shall be granted or not; And of the Sheriff's demeanour therein. After the Writ of Habere facias Possessionem returned and filled, whether the Court may award a new Writ. Where the first Writ is not fully executed, if the Court will grant a new one. Where Hab. facias Possessionem shall be after the year without Scire fac '. Return of Habere fac' Possessionem with a Fieri facias. Of Misdimeanors in giving Possession. Sheriff's Fees.  
CHAP. XV. Of Action for the mean Profits. In whose name it shall be. What Evidence shall be given in this Action or not. The Writ of Enquiry for mean Profits, how it abates. If upon Confession of Lease, Entry and Ouster, the Lessee may have Trespass for the mean Profits, from the time of the Entry confessed. In Trespass for mean Profits, Special Bail is always given.  
CHAP. XVI. 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. Nonage in Issue on Error where to be tried. Amendment of the Judgement before Certiorari awarded. Release from one of the Plaintiffs in the Writ of Errors bars only him that Released, and why. Outlawry in one of the Defendants pleaded in Error. Of Release of Errors by the Casual Ejector where it's a fraud. Error without Bail a Supersedeas. Ejectment against eight. And Judgement was only against three, And Error brought grounded upon the Judgement ad grave damnum ipsorum. Error of Ejectment in Ireland.    

THE LAW OF EJECTMENTS.  

CHAP. I.  
The Nature of the Action of Ejectione Firm, and of the Change of Real Actions into Ejectments. Difference between an Action of Trespass and Ejectment in Five Diversities. Difference between Ejectione Firm 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 Firm includes in itself an Action of Trespass, as appears by the Beginning, Body and Conclusion of the Writ; for the Writ gins thus: Si A. fecerit te securum de clamore suo prosequendo tunc pone, etc. and so gins the Writ of Trespass. The Body of the Writ of Ejectione Firm is, Quare unum Messuagium vi & armis fregit & intravit; and all the Addition in the Ejectione Firm is, Et ipsum à firmâ sua inde ejecit, etc. The Conclusion of both is, Et alia enormia ei intulit ad grave damnum; and the Trespass and Ejectment are so woven and intermixed together, that they cannot be severed; and the Entry in an Ejectione Firm is, In plito ' Transgressionis & Ejectionis Firm. In 6 R. 2. Tit. Eject' Firm 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 Firm 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 Firm.  
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; 
The Reason of the Change of Real Actions into 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 Firm, whereby the Judgement is, quod recuperet Terminum, and by that they are soon put into Possession. And therefore in a Formedon it was prayed by Council that they might proceed without Essoyns, and faint 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' Abridgement: The Remedy by Assizes and several Forms and Proceed 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 Firm used instead thereof. So that rarely is any Assize brought, unless for recovering Possession 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 Firm. But there was a new way invented to try Titles of Land in personal Actions, but was not allowed, as in Jeremy and Simsons Case, 16 Car. 2. B. R.  
It was moved for Trial 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 Firmes, which have subverted the Formedons, and it sufficiently appearing feigned on the Record, in that the Title of Land is hereby to be tried 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 Firm, 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 Firm. 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 Firm it is no more than Non culp ', and then a Trial, and so out of Possession without more business, which, he said, was a Pickpocket 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 Banisters Case, Meor Rep. 418. That Ejectione Firm 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 Firm 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 possessed 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 show 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, 
Diversity where the Damages are only recovered, and where the Term.  but in Ejectione Firm the Thing or Term itself 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 predict ', 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 Firm 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 Firm 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.  

Diversity, Possession a good Title in Trespass, but not in Ejectment, and why.  Possession is a good Title for the Plaintiff in Trespass, if the Defendant hath not a better to show, aliter in Ejectment; for in Ejectione Firm 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 entered and ousted S. who thereupon brought an Ejectione Firm, 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 
Diversity, colour not sufficient in Ejectione Firm, and why.  Firm, 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 Assize 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 
Conisance of Trespass includes not Ejectments.  Trespass, will not warrant an Ejectione Firm, 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 Firm, and the Court would not amend it: For though Ejectione Firm be but a Plea of Trespass in its Nature, yet the Actions are several, and therefore the Venire fac ' aught to be accordingly. Cr. El. 622. Clerk's Case.  

In Ejectment against two, one pleads to Issue, and the other demurs Issue first to be tried.  Ejectione Firm against two Defendants, one pleads Not guilty, the other pleads, the Plaintiff replies, and so Demurrer; no Judgement 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 joined, he shall have Judgement 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 Firm 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 entire Damages. Q. of the Judgement; for the Damages for the Battery could not be released, because they were entire with the Ejectment, Hob. 249. Bird and Snell.  
Ejectione Firm 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 Firm and Quare ejecit infra Terminum.  
Ejectione Firm 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 Firm 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 Firm is against him that is the wrong Doer.  
In Ejectione Firm if the Term expire hanging the Action, this shall not abate the Writ, but the Plaintiff shall have Judgement for his Damages; aliter in Quare ejecit infra Terminum.  
Note, No Ejectione Firm 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 Firm. The Quare ejecit infra Terminum is given by the Stat. W. 2. c. 24. for Recovery of his Term against the Feoffee; for Ejectione Firm 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 Inferior Court.  
It lies in B. R. and Banco Communi.  
It lies in the Exchequer, and for a Party privileged 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, 
In the Exchequer.  as if a Man claims Title to Lands of a Person outlawed. Ejectione Firm 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, 
How Ejectment lies in Ancient Demesne.  if it be of Ancient Demesne Lands, and not in the King's Courts; and therefore in Ejectione Firm brought above, Ancient Demesne is a good Plea. Vid. infra Tit. Pleading. 5 Rep. 105. Alden's Case.  
Ejectione Firm depends in B. 
After a special Verdict found in 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, than 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, 
Ejectment will not lie of Land in Jamaica, and why.  the Reason why Ejectment will not lie of Lands in Jamaica, or in any of the King's Foreign Territories, was, because the Courts here could not command them to do Execution there, for they have no Sheriffs, 1 Ventr. p. 59  
Tr. 
How Ejectments to be brought, if the Lands lie in Middlesex or London. Not removable by a Procedendo to a Franchise.  14 Car. 2. It was ordered in 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, than a Bill of Middlesex should be brought; and if the Lands lay in London, than a Writ of Laitat should be taken out against the casual Ejector named Defendant in every such Action.  
If Ejectione Firm 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, etc. 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 Firm was brought in the City and County of Canterbury, 
Procedendo denied, because Bail was put in 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 seized 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, etc. they suppose the Lease elsewhere in the County, 
To be tried where it's supposed the Lease is made.  and it shall be tried where it's supposed the Lease to be made; and so by Wild in Sabin's Case. Upon Ejectment in the County of Canterbury one may declare upon a Demise in any part of the County of Kent, and so try it at Maidstone; 
Canterbury.  for the Venire comes always from the place of the Demise, which was denied by Windham, the Body of the County being as another County from that of Canterbury.  
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 Inferior 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 Firm, 
Marches of Wales.  and a Prohibition granted, because they are not to meddle with the Possessions of Men, unless in respect of force, plena Curia, 2 Rolls Rep. 309.    

CHAP. II.  
Who shall have Ejectione Firm, 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 Judgement 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, 
In respect of Possession.  That upon a Possession in Law, a Man shall never maintain an Ejectione Firm, 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 Firm, 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 Firm, 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 Firm or Trespass, and it is not like to an Interest 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 privilege 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, 
In respect of Entry congeable.  cannot have Ejectione Firm, 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 Firm, 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 etc. be in force, 1 Rep. 153. Rector of Chedington's Case.  
How Copyholder or his Lessee shall bring an Ejectment, 
Ejectment by Copyholder or his Lessee.  there have been uncertain Opinions in our Books; but the Law therein stands thus.  
Lessee of a Copyholder for one year shall maintain Ejectione Firm, 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 Firm; 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. 
4 Leon. p. 18.  C.) then if the Plaintiff recover, he should have an Habere fac' possessionem, and then Copyholds should be ordered by the Common Law, 4 Rep. 26. 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, 
By Lessee of a Copyholder without Licence of the Lord.  may maintain an Ejectione Firm, 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' 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 let for twenty one years from Michaelmas last passed, he makes a Lease for twenty one years to begin at Christmas following, to the Plaintiff, who entered, and being ousted by the Defendant, brings an Ejectione Firm; the Court was of Opinion, That the Lease not being warranted by this Licence, no Ejectione Firm lies upon it.  
But in Petty and Evans' Case, in Ejectione Firm brought by the Lessee of a Copyholder, 
Declaration by Copyholder in Ejectment.  it is sufficient that a Count be general without mention of the Licence; and if the Defendant plead Not guilty, than the Defendant ought to show the Licence in Evidence; but if the Defendant plead specially (as in those times it was usual) then the Plaintiff ought to plead the Licence certainly in the Replication, and the Time and Place when and where it was made. 2 Brownl. 40. Petty and Evans.  
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 Copyholder may Lease, 
Copyholder in his Declaration need not set forth the Custom.  etc. and then to show that the Lease is warranted by the Custom. But now it's fully agreed, That the Plaintiff ought not to show that the Lease is warranted by the Custom; but that shall come on the other side, and so is the Practice not to declare on the Custom, Rumney and Eve's Case. 1 Leon. p. 100  
It has likewise been a Question, 
Ejectione Firm 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 Firm, 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, 
Copyholder Mortgagee must be admitted before he brings this Action.  and he may bring his Bill against the Lord to be admitted to enable him to try the Custom; 2 Keb. 357. Towel and Cornish.  
Ejectione Firm may be brought by 
By Executors.  Executors of Land let to their Testator for years upon ouster of the Testator for years 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 itself, 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 Firm 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, 
By Infant.  and sued by Attorney where he could not make an Attorney, but aught to have sued by Guardian per Cur ', its erroneous, and Error en fait, Cro. Jac. p. 5. Rew and Long.  
Deprivation in the Spiritual Court for Simony, 
By Symonist.  disables from bringing Ejectment, because he can make no Lease, per H. Windham Buck's Lent Assizes, 1668. Dr. Crawley's Case.  
In Jefferson and Dawson's Case Council prayed, 
The Sheriff only to deliver Se●sure on Elegit to enable the Plaintiff to maintain Ejectment.  That delivery of Possession might be awarded on Elegit, but the Court denied it, the Party having no day to interplead; and the Sheriff ought only to deliver Seizure to enable the Plaintiff to maintain Ejectment, and the Tenant may plead on the Ejectment, or else the Tenant may be turned out unheard, and so be remediless, and per. Curio 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 Firm be for actual Entry on Elegit.  has Possession, and before actual Entry he may have Ejectione Firm, and is not like to an Interest Termini, M. 25 Car. 2. B. R.  
In some Cases Remedy against an undue Extent may be by Ejectment; 
Remedy against undue Extent on Elegit by Ejectment.  as, The Inquest by Practice of the Sheriff on Elegit, find the Defendant had Lands in A. where he had nothing, and so extended all his Lands in B. as a Moiety, this is avoidable by Ejectment, as to a Moiety, and the Evidence may be, That the Defendant had nothing in A. or to file the Writ of Elegit, and in Ejectment thereon (which else cannot be brought) to plead the same; 
Ejectment against Tenant by Elegit in case of holding over, not so of a Judgement, and why.  or in case of holding over, Ejectment lies against Tenant by Elegit, if he be satisfied at the extended Value, contra of a Judgement which is uncertain for Costs and Damages, 1 Keb. 891. Dakin and Hulme. 1 Keb. 858. Lord Stamford and Hubbard.  
Intruder on the King's Possession, 
By Intruder.  cannot make a Lease whereupon the Lessee may maintain an Ejectione Firm, tho' he may have an Action of Trespass against a Stranger; 
Stranger may enter, notwithstanding Judgement in Informat' in Intrusion.  but a Judgement in Information of Intrusion pro Rege binds not a Stranger, but that he may enter and bring Ejectment; if it were otherwise this would be a Trap for any Man's Possession by lawful Title; and the Judgement on Intrusion is not in the nature of Seisin or Possession, 
Judgement in Intrusion, what.  but only quod pars committatur & capiatur pro fine, and an Entry may be made by the King's Patentee, Hardress, p. 460. Friend and the Duke of Richmond.  
If a Stranger entereth 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 Farm. A Lessee may have Ejectione Firm, 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 Firm, 
The Lessee of the King.  tho' the King be not put out of the Freehold by the Words, He entered 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, 
By Tenant in Common of one Moiety.  without actual Ouster, cannot maintain Ejectione Firm against the Lessee of his Companion.  
J. 
Entry taken away by lapse of time for not entering.  M. covenants to stand seized to the use of himself for life, and after to the use of his Daughters, until every one of them successive shall or may have levied 500 l. Remainder to his eldest Son. He had four Daughters at the time of his Dea●● and the Land was worth 100 l. per Annum; the Father died in 30 El. the eldest Son immediately entered, the eldest Daughter entered in 42 Eliz. and made the Lease to the Plaintiff; Per Cur ', she hath overpast her time, and cannot enter; for than 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 Firm: 
By a Person outlawed.  For tho' a Person outlawed cannot after an Extent, prevent or avoid the King's Title by Alienation, yet the Outlawry gives no Privilege to the Possession of a Disseisor, but that the Disseisee may enter and bring the Ejectment; for by the Outlary the King hath only a Title to the Profits, and no Interest in the Land, Hadr. 156. Hammond's Case vide.  
If a Man ousts the Executors of his Lessee for years of their Term, 
By Executors.  they may have a special Action on the Case, or they may have an Ejectione Firm or Trespass, 4. Rep. 95. a. Reg. 97. N. B. 92.  
One seized of Lands in Fee-Simple, 
The Bail lets Lands to B. Judgement is against the Principal, and Extent on the Lands leased. B brings Ejectment.  becomes Bail in an Action of Debt in B. R. and after Issue joined, let the Land to B. the Plaintiff; Judgement 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 Firm, Crok. Jac. 449. Kervile and Brokest.  
Tenant for life, 
Where the Issue in Tail is 〈◊〉 to Execution on a 〈◊〉. on Sc' fac ' returned, 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 And ' Querela, nor by any other way, but against the Sheriff, if he have made a faux return of the Scire fac', Siderfin, p. 55. Day and Guildford.  
Rend granted with a Proviso, 
Upon Entry of Grantee of a Rent and Retainer till Satisfaction for Arrear, he may upon such Interest quousque maintain an Ejectment; and so the Lord upon Scisure of a Copyhold till the Heir come to be admitted. 1 Keb. 287. in Pateson's Case.  that if it be Arrear the Grantee may enter and retain until he be satisfied. This Proviso shall enure to grant a certain Estate to the Grantee when he enters for Nonpayment. And tho' the Grantee by such Entry cannot gain a Freehold, yet he had such an Interest as he may make a Lease of it, and his Lessee may have an Ejectment; for the Law does not give an Interest to any, but it also gives a Remedy for it; and if he have Remedy to hold such Possession, he ought to have this Action, which is the lowest Degree of gaining Possession. So in the Countess of Cumberland's Case, Anno 1659. of Copyholds, there was a Custom, That if such Tenant who claims Tenant Right, does not pay his Fine, the Lord may enter and retain the Land until he be satisfied, and adjudged that his Lessee upon such Entry for Nonpayment, may maintain Ejectione Firm, 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 seized in Fee by Indenture, grants a Rend 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, 
By Tenant at Will.  That Tenant at Will may make a Lease for years to try a Title of Land, and so may a Copyholder, Stiles Rep. 380.  
Ejectment is brought by Cesty que Trust. 
By Cesty que Trust.  Now if the Trustee of the Lease be Lessor in Ejectment, he may disclaim in pays (if he have not accepted the Trust) which will avoid the Plaintiff's Title at the Trial; 2 Keb, 794. Cheek and Lisle.  
Vendee of the Commissioners on the Statute of Bankrupts of Lands by Deed Indented, 
By a Vendee of the Commissioners of Bankrupts.  cannot maintain by his Lessee an Ejectione Firm, before enrolment of the Deed, altho' it be enrolled 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 enrolled also; Sir Tho. Jones, p. 196. Perry and Bowers.  
Note, Lessor of Tenant in Possession hath no Privilege 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 Firm. 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, etc. Vic Mid salutem. Si A. ●. fecerit te securum tunc pone p 〈…〉 pleg C. D. nuper de London 〈◊〉. Ita qd sit coram justiciariis 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 Commit 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, etc. T. etc.   

On the return 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, etc. and Summonitus in Ejectment was held to be an Error.  
In Ejectione Firm brought by Original Writ out of Chancery; 
Summonit. for Attachment, is Error after Verdict.  the Record upon the Issue-Roll was entered in this manner; ss. Simo Edulph nuper de C. summonit fuit ad respond Tho. R. de plito quare vi & armis, etc. And after Verdict pro Quer ', it was moved, That this was a Vicious Original, and not aided by any of the Statutes of Jeofails; 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 filled; 
Aliter if there be no Original.  and then per Cur' seeing there is no Original filled, 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. Cider 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. 
Original taken out before the Cause of Action, is Error.  Per Cur ', Take it, for it is in Affirmance of a Judgement, 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 ' its Error, because the Original (upon Diminution alleged) 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. john's and Steyner.  
It's a Rule in the Register, That in the Writ of Ejectione Firm 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' Case. The Suit was by Original Writ, which is of one Message, 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. etc. This Declaration is in Trinity Term, and here is no Continuance upon this Writ, Cro. Car. 327. Johnson and Davis.  
In Ejectione Firm the Paper-Book was right, 
Where Amendment shall be by the Papre-Book, or not.  scil. Acram Terrae, and the Bill upon the File was ill (scilicet) Clausum Terrae; and the Bill was amended by the Paper-Book; and the Difference is, where there is a Paper-Book in the Office of the Clerk, this being right, all shall be amended by it; but if there were not any Paper-Book, and the Bill upon the File is ill, there can be no Amendment: and in this Case the Amendment was according to the Paper-Book which was in the Hands of the Plaintiff's Attorney, Palmer, 404, 405. Todman and Ward.  
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, 
Original Teste the same day of Ejectment.  and adjudged good per totam Curiam, 2 Roll. Rep. 352, 129. Beaumond and Coke.  
As for the Amendment of Originals in Ejectione Firm, 
Of Amendments of Originals in this Action.  there are many Cases in our Books; I shall name one or two which may be as a Guide in others.  
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 Firm, 
If the Paper-Book be perfect, tho' the Bill upon the File be not perfect, yet it's amendable after Verdict.  if the Bill be not perfect; but Spaces left for Quantity of Land and Meadow; and after the Paper-Book given to the Party, is made perfect, and the Plea-Roll and Nisiprius Roll, but the Bill upon the File was never perfected; and after a Verdict is given for the Plaintiff, this Imperfection of the Bill shall be amended, because the Party is not deceived by this, forasmuch as the Paper-Book which he had, was perfect, and it was the Neglect of the Clerk not to amend the Bill when the Party had given him Information of the Quantity, 1 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 Firm for Lands, etc. depending by Original Writ, after any Issue therein joined, and also after any Judgement therein had and obtained, there shall not need to be Fifteen Days between the Teste-day and the Day of return 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 return 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 Judgement, because Battery was joined in Ejectment, the Damages were found severally, and the Plaintiff released the Damages for the Battery, and prayed Judgement 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, 
Judgement against the casual Ejector for want of Appearance.  and enter into the Rule for confessing Lease-Entry and Ouster, then upon Affidavit made of the Service thereof, and Notice given him to appear, upon Motion the Court will order Judgement to be entered up against the casual Ejector.  
In Ejectment or any other personal Action, if the Defendant do appear upon the first return in Hillary or Trinity Term, there can be no Imparlance without Consent or special Rule of Court.  
In Actions real and mixed against an Infant, he ought to appear by Guardian, 
Infant, how to appear.  and not by Attorney; and Judgement in Ejectione Firm in Banco against the Infant Defendant upon a Verdict had against him, was reversed for this Cause, 1 Rolls Abr. 287. Lewis and john's.  
Ejectione Firm 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' add prosequend', this is Error: A Guardian and Prochein Amy are distinct, 
Infant, how to sue or defend.  and a Guardian or 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, 
The Difference between Guardian and 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 aught 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 Judgement in C. B. in Ejectione Firm assigned in 1 Cro. 
Pledges not assigned for Error, because Diminution was not prayed.  91, 594. in not certifying Pledges (on Diminution alleged) in a Writ of Error, for that Cause 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 Judgement; yet when the Record is come in, it may be made use of to avoid the Judgement; and because Diminution was not prayed, the Court conceived it cannot be assigned for Error, 1 Keb. 278, 281. Hodges' 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, 
Common Bail entered after the Attorney was dead.  Verdict was for the Plaintiff, who had Judgement, and Error was brought to reverse it, because no Bail was put in for the Defendant; yet the Attorney being once retained by Warrant to put in Bail, and took his Fee, and being but common Bail, tho' the Attorney was dead, yet the Bail was then entered, as of the same Term it ought to have been done, 3 Bulstr. 181. Denham and Comber.  
Trespass is within the Act of 21 Jac. which names Trespass generally, 
Stat. 13 Car. c. 2.  but Ejectment is not within that Act. Stat. 13 Car. 2. c. 2. orders Bail on Error in Trespass, 1 Keb. 295. Power's Case.  
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. 
When common Bail to be filled.  14 Car. 2. B. R. ordered that Common Bail shall be filled 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, than no Judgement for the Plaintiff shall be entered against the casual Ejector, nor shall the Tenant in Possession confess Lease-entry and Ouster at the Trial.  
Attorney was made Lessee in Ejectment, 
Imparlance.  and he would not grant an Imparlance to the Defendant, as the Course is, because he is Attorney of this Court (B. R.) and so claims Privilege that the Defendant may answer him this Term, or else he will enter up Judgement against him for want of a Plea. Quaere. Styles Rep. 367.    

CHAP. IU.  
Against whom Ejectione Firm 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 Firm 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, 
Who was accounted an Ejector formerly.  the Ejector in Law was any Person that comes upon any part of the Land, etc. in the Ejectment-Lease, tho' it be by chance, and with no intent to disturb the Lessee of Possession, next after the Sealing and Delivery of the Ejectment-Lease; and such an Ejector was a good Ejector, against whom an Action of Ejectione Firm 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. 
The new course in Ejectments.  For now it is not usual to seal any Lease of Ejectment at all in this Action, but the Plaintiff that intends to try the Title, feigns a Lease of Ejectment in his Declaration, and an Ejector, and draws a Declaration against his own Ejector, who sends or delivers a Copy thereof to the Tenant in Possession, giving him Notice to appear and defend his Title, or else the Ejector will confess, or suffer Judgement by Default: But if the Tenant or the Lessor will defend the Title, then▪ it is usual for them to move the Court that they may be made Ejector to defend the Title (that is) the Tenant appears, and consents to a Rule, with the Plaintiff's Attorney, to make himself Defendant in the room of the casual Ejector, and this the Court will grant, if he will confess Lease, Entry and Ouster, and at the Trial stand merely upon the Title; but if they do not at the Trial confess Lease, Entry and Ouster, than the Judgement shall be entered against the casual (viz.) the Plaintiff's own Ejector.  
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, 
The old way of Sealing Leases of Ejectment.  I hope it will not be tedious a little to show how the Law and Practice was taken when Ejectment-Leases were sealed, and Entries to be duly made, and Warrants of Attorney made to deliver the Lease upon the Land by a Corporation, Baron and Feme, etc. especially considering that in Inferior Courts the old way of actual sealing Leases is continued, Winch 50. 1 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 tried 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 adjoining to the House (viz.) the putting in of an Horse which was driven 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. argol and Cheney.  
The Corporation of Mercers were seized of the Lands in Question, 
By Corporation.  in the several Possessions of Two Men; and being so seized, made a Deed of Lease to the Plaintiff and a Letter of Attorney to deliver the Deed and the Possession. The Attorney entered upon the Possession of one of the Men, and there delivers the Deed, and after enters in the Possession of the other, and there doth deliver the Deed; the Question was, If it were good for the Land for which the second Delivery was, because one Deed cannot have two Deliveries; but the Court held, it shall be intended the first Delivery was good for all, and it shall not be intended but that the two Men had Possession only as Tenants at Will to the Corporation, and then the Delivery of the Lease in one place, is good for all; and it shall not be intended they had an Estate for Years or Life, except the contrary be showed.  
Baron and Feme join in a Lease by Indenture to B. 
By Baron and Feme.  rendering Rend for Years, and make a Letter of Attorney to seal and deliver the Lease upon the Land, which is done. B. brought Ejectment, and declares of a Demise made by the Baron and Feme; and upon evidence to the Jury, it was ruled 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 merely void; so that this only is a Lease of the Husband, which is not maintained by the Declaration. But Hopkins' 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, 
Ejectment in Inferior Courts.  or in any other Inferior Court, they cannot make Rules to confess Lease, Entry and Ouster, as in the Courts of Westminster, but they must actually seal the Lease, as at Common Law. And so it was in Sherman and Cook's Case, where it was moved, That the Defendant, who by Habeas Corpus had removed an Ejectment out of the Sheriff's Court, might consent to a Rule of Court, that he should confess Lease, Entry and Ouster; but the Court refused, the Defendant not being bound by the Rule below; because they cannot proceed by way of delivering Declarations to the Tenants in Possession, but as at Common Law by actual Lease sealed: 
Trials below, how.  And by Hyde, all the Trials below are tried in the casual Ejector's Name by him that is Tenant in Possession, to avoid Charge. P. 16 Car. 2. B. R. M. 16 Car. 2. B. R.  
Where the Freeholds are several, 
Where the Freeholds are several, the Plaintiff must sever his Action.  and one Defendant gives a Note of what is in his Possession, the Plaintiff must sever his Action, else the Defendant might lose his Costs, for which on severance he would have legal Remedy. And here is no Inconvenience, because the Plaintiff may take Judgement against his own Ejector for the rest; and the Defendant shall not confess Lease, 
The Defendant not to confess Lease. Entry and Ouster for any more than is in his own Possession.  Entry and Ouster of all, but only of so much as is in his own Possession, which is the only way to save his Costs. And Medlicot's Case was, where the Plaintiff's Title is one by the Demise of A. and the Defendant's several, the Plaintiff offered to secure Costs severally to all; but he was ordered by the Court to deliver several Declarations, that none may defend for more than is in his own Possession, else the Plaintiff might clap in an Acre of his own to save Costs: and Agreements of Parties are no Guide to Rules, but would make the Court but Arbitrary; and this Rule is no hindrance of Trials at Bar, where many Defendants have but the same Title, Tr. 21 Car. 2. 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, 
The Inconvenience of the new Course of leaving Declarations.  and crept in since the new Rule of leaving Declarations, the Lands being in several places distinct from each other, and may be held by several Titles, which could never be, had the old Course of actual Ejectment continued; but on suggestion that the Title was but one, and one Plaintiff, and one Defendant, it was admitted, M. 15 Car. 2. 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 Trial, the Plaintiff cannot proceed against the rest, but must be nonsuited, 1 Ventr.  
In Ejectment the Plaintiff shown Copy of four Acres, 
In what case the Court will give leave to retract the general Confession of Lease, Entry and Ouster.  to save Costs, the Title being on Will or no Will; but not being able to prove where particularly, the Court gave leave to the Defendant that claimed by the Will, to retract the general Confession of Lease, Entry and Ouster as to this, and to have Judgement against the casual Ejector, M. 27 Car. B. R. Hid 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 Trial (which was to be at the Bar) to appear and confess Lease, 
Of the Defendant's Refusal to confess Lease, Entry and Ouster.  Entry and Ouster, and to stand upon the Title only, yet at the Trial he would not appear; upon which the Plaintiff was Nonsuit, and yet Judgement was for the Plaintiff upon the Rule, and he was ordered to pay the Jury. And in Davies' Case, 13 Car. 2. B. R. H. desired to be made Defendant, confessing Lease, Entry and Ouster, and at the Trial resolved so to do; but the Court denied that he should pay Costs, because thereby the Plaintiff hath recovered, and so hath the Fruit of his Suit. 
To pay no Costs.  But in Williams and Hall's Case, on Trial at Bar the Defendants refused to confess Lease, Entry and Ouster, per quod the Plaintiff was Nonsuited; and it was moved, that in regard the Default was the Defendant's, that the Plaintiff might have Attachment against the Defendant, according to the Course of the Common Bench, which the Court granted. So upon a Judgement against his own Ejector in default of confessing Lease, Entry and Ouster, without a special Rule, no Costs shall be paid by H. the Tenant in Possession that made this Default, because the Plaintiff hath Benefit of his Suit (viz.) Judgement against the Ejector, whereby he may recover Possession. Styles p. 425. 13 Car. 2 B. R. 15 Car. 2. B. R. 1 Keb. 242.  
The Form of the Rule of Confessing Lease, Entry and Ouster in B. sR. & B. C. Vide infra.   

Of the Effect of an Entry according to the Rule, and where it will supply an actual Ouster, and where not.  
Ejectment was brought by Devisee of a Rent, 
Where confessing Lease, Entry and Ouster, will supply an actual Ouster, or not.  on Condition, That if a Legacy be not paid yearly, etc. that it shall be lawful for the Devisee to enter; and after the Demand made of the Rent, this Action was brought, and the Lease, Entry and Ouster was confessed. 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 nonsuited: But otherwise in case of a Lease rendering Rend, to be void by Reentry by Nonpayment. 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, etc. 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, which 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 Nonpayment 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. Judgement 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 Judgement was against the casual Ejector. 
The Rule to confess Lease-entry and Ouster, does not extend to confess actual Entry upon a Lease which is the Title.  The Rule to confess Lease, Entry and Ouster, does not extend to confess actual Entry upon a Lease, which is the Title; but the Court said, An Entry shall be intended, until the contrary be proved of the other side. The Case was upon Evidence to a Jury at the Bar. The Plaintiff's Title was a Lease for Five thousand Years, which Lease was sealed and delivered at London; and the Council for the Defendant would put the Plaintiff to prove an actual Entry by force of this Lease; for it was agreed, That the Rule to confess Lease Entry and Ouster, doth not extend to it; but per Cur' it shall be intended that he entered, until the contrary be proved on the other side, M. 22 Car. 2. Okely and Norton. Sid. p. 223. Langhorn and Merry.  
Upon a Trial 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 accrued, 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 one's being made Defendant, the Rules are thus.  
He that desireth to be made Defendant in Ejectment for as much as is in his Possession, 
The Defendant to give a Note of what is in his Possession.  or of his Under-Tenant, must give a Note to the Attorney of the Plaintiff in Writing of what the Particulars are, of which he is in Possession, or his Under-Tenant, to prevent Delay at the Assizes, T. 15 Car. 2. so ordered.  
By Pinsent. in B. C. If one move that the Title of the Land do belong to him, and that the Plaintiff hath made an Ejector of his own, and therefore prays, that giving Security to the Ejector to save him harmless, 
Difference between the Course in the King's Bench and Common Pleas.  he may defend the Title, the Court will grant it, but will not compel the Plaintiff to confess Lease, Entry and Ouster, except he will be Ejector himself. But it is not so in the Court of King's Bench, for there in both Cases, they will compel him him to confess Lease, Entry and Guster, Stiles Rep. 368.  
The Course of the Court is, 
He that is made Defendant in Ejectment, not to be charged with Actions by the by.  That one that cometh in to be made Defendant in Ejectment, upon his Prayer confessing Lease, Entry and Ouster, shall not be charged with any Actions by the by; because he comes in without Process or Arrest, only to defend the Title.  
In Ejectment after Declaration and before Plea, 
Motions to t●r the Plaintiff, and why.  he which had the Title, moved the Court for to alter the Plaintiff, because he was to give evidence; and the Court agreed to it, that he should alter the Plaintiff paying Costs, and giving Security for new Costs; and they may alter the Plaintiff in this Action upon the same Reason that they may alter the Defendant, which is usually done, 1 Siderf. p. 24.  
Note, 
After Default in Ejectment the Defendant may confess Lease, Entry and Ouster.  After Default (in Ejectment) the Defendant may confess Lease, Entry and Ouster, and may give evidence, and have all Advantages (except Challenges) and if the Plaintiff becomes Nonsuit, any one for the Defendant may pray it to be recorded, Trials per pays, 195.  
The Defendant was by Rule of Court at the Trial 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 Trial he would not appear; upon which the Plaintiff was Nonsuit, and yet the Judgement was for the Plaintiff upon the Rule, and he was advised to pay the Jury. Styles 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 Judgement without beginning de novo. 
Enlargement of the Lease for a longer Term by the Court.  And therefore Pemble and Sterno's Case being adjourned into the Exchequer-Chamber, the Court ordered an Enlargement of the Lease or Term from seven to twelve years, which they may do by Law, no Lease ever being actually sealed, but declared on, and consented to, Tr. 21 Car. 2. Pemble and Sterne's Case.  
The Lease was 24. Sept. Habend. from Michaelmas next, virtute cujus the Plaintiff entered, 
Virtute cujus he entered.  and said not when; Per Cur' it shall be intended on the day after Michaelmas; but if it had been virtute cujus he entered eod' 24 day of Septemb. it had been ill. P. 26 Car. 2 halam and Scot  
Lease of all Warrants Ejectment of Part.  
Ejectment by Lessee of Lessee of the whole by the Daughters and Heirs of Sir Peter Vanlore, 
How the Lease to be made where there are several parts uncertain claimed.  which was made by reason of the uncertainty of the Part claimed by the Plaintiff, 2 Keb. 700.  
Lease made to try a Title in Ejectment, 
Lease to try Title, no Matenance.  is not within the Statute of Buying of Titles, if it be not made to great Men, but to a Servant of him that hath the Inheritance, 2 Brownl. 133.  
Note, Ejectment may be brought upon a Lease made in the same Term, 1 Ventris.  
Upon a Lease made by Husbands and their Wives for the Trial 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 Firm 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 entered, how taken and expounded. Uncertainty in the Limitation of the Commencement, and no Day of the Date shown. Et postea, etc. how expounded. The manner of Declaring by Coheirs, by Tenants in Common, by Baron and Feme, by joint-tenants, by a Corporation, by Copyholder, by Administrator.  
THE new way of Trials 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 settled) 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, joint-tenants, 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 Inferior 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, etc. 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 show 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 Firm may be brought, and what not.  
Ejectment lies not the una demo, because it may be a Dowe-house or Dwellinghouse; 
De Do●●●  but Cro. Jac. 654. in Royston's Case contra, that it lies de domo, as well as waste de domibus, but it lies de domo vocat ' Holts, 2 Roll. Rep. 487, 482. Warren's Case. Cr. Jac. vid. in Pasch. 1650. Fry and Pooly. Hard. 76.  
Ejectment lies not the uno tenemento. 
De Tenemento.  Ejectment was brought of an House and the Moiety of a Tenement; it lies not for the Moiety of a Tenement; Verdict was (in this Case) given for the Plaintiff and entire Damages. 
Where the Plaintiff may aid himself by release of part.  The Plaintiff my well release his Damages, as to the Tenement, and take his Judgement for the House, and then it shall not be Error, 2 Bulst. 28. Rothowick and chapel.  
Ejectment lies de uno Burgo, 
De Burgo.  Hardr. 123. Danver ' s Case.  
Ejectment de uno cubiculo, 
De Cubicule.  is good; as it was laid, it was unius Cubiculi, per nomen unius Cubiculi being in such an House in the middle Story of the said House. The word Cubiculum is a more apt word than Camera. Ejectment de una Rooma, it was said had been adjudged good in B. R. So a Praecipe lies of an Upper-Chamber, 3 Leon. p. 210. 2 Rolls Rep. 48.  
Ejectment de uno repositorio, 
De Repositorio.  Judgement was reversed, because it was uncertain, it not being expounded in English, it was intended a Warehouse, W. Jones 454. Sprig's Case. Cro. Car. 551. mesme Case.  
It is not formal to bring Ejectment de unâ Capellâ, 
De Capella.  but it ought to be by the Name of a Message or House, 11 Rep. 25. b.  
Ejectment de septem Messuagiis sive Tenementis; 
De septem Messuagiis sive Tenementis.  it's ill after a Verdict for the uncertainty, Cro. El. 146.  
Ejectment de uno Messuagio sive tenemento vocat ' 
De uno Messuagio sive Tenemento vocat'.  the Black Swan, is good per Twisden; for the last words ascertain it. Had the Verdict been general for the Plaintiff for the Messages, 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 Message 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 Firm lies not the Coquina, 
De Coquina.  but it lies by Bill in B. R. tho' Coke said it lies by Writ too, and the Law is all one, 1 Roll. Rep. 55.  
It was adjudged in Styles Rep. 215. That Ejectment doth lie of a Cottage, 
De Cotagio.  because the Description of a thing by that Name is sufficient and certain enough to show the Sheriff of what to deliver the Possession; but a Recovery lies not of a Cottage, Stiles p. 258. Hammond and Ireland. Cro. El. 818. Hill and Gibs.  
Ejectione Firm lies the Pomario, 
De Pomario▪  and de Domo, for they are certain enough to give Possession, tho' a Praecipe lies not of it; and many things are recovered in Ejectment, which are not named in the Register, as Hopyard, etc. Cro. Jac. 654. Royston and Eccleston. Palmer, 337. mesme Case. Cro. El. p. 854. Wright and Wheatly.  
Ejectione Firm de quatuor molendinis, 
De molendinis.  without expressing whether they are Windmills or Water-mills, yet good, Mod. Rep. 9 Fitz Gerard's Case.  
In Palmer and Humphrey's Case it was adjudged, 
De pcciaterrae.  That Ejectment lies de pecia terrae; but it was after reversed in the Exchequer-Chamber, Cro. El. 422. Palmer and Humphrys.  
And a Declaration de una pecia terrae continen' ducentas & unam Acram sive plus sive minus jacent' inter terras, etc. this was adjudged ill after a Verdict, and Nil cap' per Billam entered. 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 Firm cannot be of a Manor, 
De Manerio.  for that there cannot be an Ejectment of the Services; but if they express further a Quantity of Acres, it is sufficient, and it lies of a Manor or the Moiety of a Manor, if the Attornment of Tenants can be proved; and there is none that brings Ejectment of a Manor, but they also add the Acres that contain it, to the end that if they prove it not a Manor, they may recover according to the Acres. Vide infra. Hetley 80. Norris and Isham. And p. 146. Warden's Case.  
It was doubted by Rolls and the Court, 
De Crofto.  if an Ejectment lies the Crofto, therefore the Plaintiff moved for a special Judgement for the rest of the Land contained in the Declaration, and released the Damages as to the Croft, and had it; but afterwards in Mere and French's Case it was agreed, That Ejectione Firm lies of a Croft, and Dower, and Assize 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 Assize. Rolls Rep. p. 30.  
Ejectment de uno Clauso▪ 
De uno Clauso.  without saying how many Acres, is ill. A Man makes a Lease of a Garden containing Three Roods of Land, 
De tribus Roods of Land.  Lessee is ousted and brings Ejectment; the Justices differed in Opinion, whether it were good or not; but all agreed the best order of Pleading to be, to declare, That he was ejected of a Garden containing Three Roods of Land, Godb. p. 6.  
Parcella terrae does not comprehend a Garden in Ejectione Firm, 
Parcella tarrae.  Moor 702. Palm. 45.  
Ejectment de uno Clauso continen' tres Acras per estimationem, ill; but Indictment quare vi & armis in Clausum continen' tres Acras per Estimationem fregit, is good. Debt or Demise of Seven Acres per estimat', is ill, Dormer's Case. Brownl. p. 142.  
Tho' in Co. 11 Rep. 55. savil's Case, That an Ejectione Firm 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 alleged, as to say, Land, Meadow, Marsh, etc. And by Coke, if he had bound the Land without showing 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 Firm of a Close called White-Close, was said to be held good in Ellis and Floyds Case cited in Madonell's Case. But in Ireland Ejectment was of a Close called the Upper Kibwell, and of another called the Lower Kibwell, containing Three Acres of Land, was held good. 
Regula.  And it is a sure Rule, That the certainty of the Land ought to be described, and the Quality, etc. And therefore the Case of Jones and Hoell seems not to be Law, which was Ejectione Firm 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, it's sufficient, and aided by the Statute of Jeofayls, 11 Rep. 55. savil's Case. 1 Roll. Rep. 55. mesme Case. Cro. Jac. 435. Wilks and Sparrow. 2 Roll. Rep. 1. 608, 189. Macdonel's Case. Cro. El. 235. Jones and Hoell.  
In Martin and Nichol's Case Error was assigned, 
It's not distinguished how much of Pasture, and how much of Meadow, ergo ill.  because the Declaration was of a Message, and Forty Acres of Land Meadow and Pasture thereunto appertaining, and it was not distinguished how much there was in Land, and how much in Pasture, and the Judgement was reversed, Cro. Car. 573. Martin and Nichols.  
Observe, 
Acres according to Statute-measure.  In Ejectione Firm or a Praecipe of 100 Acres, this is according to Statute-measure; but if one bargain and sell 100 Acres of Land to another, that shall not be according to the Statute-measure, but after the usual Account in the Country; in Andrews Case cited in Ewer and Heydon's Case.  
The Declaration was, 
De duabus acris fundi, Anglice, Hop-ground.  That he was ejected è duabus Acris fundi, Anglicè, Hop-ground. Per Rolls, it is good in a Grant, but not in Declarations, and the Anglice here does not help it; for the Anglicè is not to interpret a Latin Name by which it is called, Stiles Rep. 202, 203. Meers and French.  
Ejectment lies the decem Acris Pisarum; for in common Acceptance Ten Acres of Pease, 
De decem acris Pisarum.  and Ten Acres of Land sowed with Pease is all one, 1 Brownl. 150.  
Ejectment of Three hundred Acres of Waste, 
De 300 Acres of Waste.  inter alia, etc. 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 Judgement of the Residue, Hardr. 57 Hancock and Prynn.  
Ejectment lies de prima Tonsura, of the first Crop, 
De prima Tensura.  Cro. Car. 362. Ward.  
Ejectment lies of a Cole-mine, 
De Cole-mine.  for it is a Profit well known. Ejectment of Land and a Coal-pit in the same Land, ruled to be good, because it is in a personal Action, aliter in a Real Action, because it is his petitum, 1 Rolls Rep. 55. Cro. Jac. 21. Harbotle and Placock.  
It lies of a Boillary of Salt-water, 
De un. Boillary of Salt.  Siderf. 161.  
Ejectment lies not the rivulo seu aquae cursu, 
De R●vulo aquae cursu.  therefore Godbolt, p. 157. n. 213. is not Law; nor a Praecipe 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. chaloner and Thomas. M. 6 Jac. chaloner and Moor. Cro. Car. 492. Herbert and Llanghlyn's Case.  
Ejectione firm lies not the Profit apprender, 
De Profit apprender.  and so not of a Common or Rent, nor of a Pischary, it must be terra aqua cooperta in such a River, tho' the Court seemed doubtful of it in M●llineux's Case, which was Ejectment of an House and Lands in T. nec non de Libera Pischaria infra Rivulum de Trent in which Action Damages were entirely given; 
De Libera Pischaria.  but to avoid the Question, the Plaintiff released his Damages totally, and his Action quoad the Pischary, and had Judgement for the Residue, Cro. Jac. 146. Molineux.  
Ejectment was brought in Ireland of forty Messages, 
De 100 Acres of Bogg.  Five hundred Acres of Land, an Hundred Acres of Bogg in the Villages and Territories of D. S. and V Bogg is an usual Word, and well known there, and if it were not, the Plaintiff may release his Demand as to that, and have Judgement for the Residue. Another Exception was, because it was in Villis & Territoriis; 
In villis & territeriis.  but per Cur' it's well enough, and of the same Sense; and if not, it is but Surplusage, as to the Territories, 
De 50 Acres of Mountain in Ireland.  but Ejectment of 500 Acres of Mountain in Ireland, is ill, for it is not of one Nature, but several, as Turfs, Pasture; but a Praecipe is good de Saliceto, de Stagno, de Dominio, by the general Notice the Country hath of them where the Lands lie, and of their Quality. On Ejectment in Ireland Error was brought in B. R. here, because he brought Ejectment of 40 Acres of Wood, 
De 40 Acris bosci, & 40 Acris subbosci.  and 20 Acres of Under-wood, and so one thing twice demanded, because Underwood is a Species of Wood, sed non allocatur, because this does not appear to the Court, and this shall not be alleged for Error, but aught to be taken in Abatement of the Writ, Cro. Car. 512. Mulcarry and Eyres. 2 Roll. Rep. 166, 189. Macdonnel's Case. 2 Rolls Rep. 487, 482. Warren and Wakeley.  
Ejectione Firm be omnibus Decimis is not good; 
De omnibus Decimis. De quadam portione D. 〈◊〉.  it lies not the quadam portione Decimarum generally, but de quadam portione granorum & foeni is good; the Nature ought to to be showed, though not the Certainty; and the Ejectment was supposed in May, when there is not any Tithes, and so not good. It may be that all the Tything consists in Modo decimandi for Payment of an yearly Sum in Satisfaction of Tithes, whereof no Ejectione Firm lies. It was a Question in Priest and Wood's Case, Cr. Car. 301. Whether an Ejectione Firm lay of Tithes only? it may be of a Rectory, or such a Chapel, and of the Tithes 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. Priest and Wood  
Ejectment of so many Acres Jampnorum & Bruerue, 
De 20 Acris Jampnorum & Bruere.  and does not express how many of each, yet good, Mod. Rep. 9 Fitzgerard's Case.  
Ejectione Firm de una virgata terrae lies not, 
De una Virgata terrae.  and so it was adjudged in the Exchequer-Chamber. Error was brought of a Judgement in C. B. in Ejectment de Virgata terre on general Verdict, which is ill, being uncertain in every County; but the Plaintiff below might have Released Damages as to that, but now it is too late, Cro. Eliz. 339. Jordan's Case. 3 Keb. 450. Hall▪ and Johnson.  
Ejectione Firm lies not de Pannagio. 
De Pannagio.  Q. de Parco, Sid. 417.  
It lies de Herbagio, 
De Herbagio.  2 Rolls Rep. 481, 482.  
Ejectione Firm was brought for Entry into a Message 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 merely void, and the Plaintiff released Damages, and had Judgement, 3 Cro. 228. Wood and Pain. Cr. El. 186. mesme Case.  
Ejectment lies not of a Free Warren, 
De libera Warrenna.  1 Keb. 500  
Count of the Moiety of two Acres of Land, 
De Moiety of 20 Acres of Land.  is well enough, and Trespass lies against the Sheriff, if he does not execute on the right places, 1 Keb. 278. Lufton's Case.  
Per Cur' Ejectment lies de uno Stabulo, 
De uno stabulo  or wherever the thing is so certain that the Sheriff may do Execution, 1 Keb. 236. Whitacre's Case.  
Separalis Pischaria usque ad filum aquae cannot be counted upon, 
Separalis Pischaria usque ad C.  but per Windham such Evidence might be given of such Pischary by Metes and Bounds, 1 Keb. 290. Sir Chr. Grief and adam's.  
Ejectment lies de Capella, 
De Capella.  per Windham, 1 Keb. 438.  
Ejectment was laid on Demise at T. 
Of an House and Land in quodam campo juxta le Castle-hill.  of an House and Land in quodam campo juxta le Castle-hill, which per Cur' is ill (on motion in Arrest of Judgement;) for no Execution can ever be directed to any Sheriff; and it must appear where the Land demised lieth, 1 Keb. 777. Took and Atho.  
Ejectment of Ten Hides of Land is good; a Hide of Land is the same as Carucat ', 
De 10 Hides of Land. Carucat. terrae what.  which is as much as a Blow which is usually intended to have six Horses may manure in a year, and being 100 or 120 Acres in Northamptonshire, 1 Keb. 877. Wright and Sherrard.  
Ejectment the 7 Messuagiis sive Tenementis is ill after a general Verdict, 
De Messuag. & Tenement.  and it's on Demurrer; this might have been helped by taking Verdict of either: So it is when the Ejectment is de Messuagio & Tenement ', its ill after General Verdict, 2 Keb. 80, 82. Burbury and yeoman's.  
Ejectment does not lie of a Light house, 
Lighthouse.  but Action on the Case, 2 Keb. 114.  
Ejectment of the Pannage of a Park, is ill, 2 Keb. 460.  
Ejectment of a Close of Meadow doubted in Steel and Stanly's Case. 
De Close of Meadow.  M. 22 Car. 2. B. C.  
Ejectment of 600 Acres of Fen-Marsh, 
600 Acres of Fen-Marsh, Meadow, arable L●●d.  Meadow, arable Lands: Twisden asked the Plaintiff whereof they would take their Verdict, if they would have it of Marsh; and as such give Execution of the Fens in Question, 2 Keb. 23. Downham and Walden.  
Ejectment the 20 Villis & Terris in Ireland, 
De 20 villis & terris in Ireland.  the Court conceived it wellenough on 1 Cro. 512. the Original Judgement 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 Message includes a Garden, 
De messuagio includes a Garden.  3 Keb. 44.  
Ejectment de virgat' terrae ill on General Verdict, 
De virgata terrae.  being uncertain in every County; but the Plaintiff below might have Released Damages, as to that; but now it is too late. This was in 〈◊〉 of a Judgement in B. R. 3 Keb. 450. Hall and Johnson.  
Ejectment of Moor or Meadow, 
Moor or Meadow.  is ill, 3 Keb. 529.  
Ejectment lies not of Common or Pischary alone, 
De Common and Pisdhary.  yet being after Verdict, it should be intended appurtenant, and so well enough: This was in Ejectment of a House and 40 Acres of Pasture, Keb. 738. Barton's Case.   

Now as to Declarations in this Action, I shall lay down some General Rules.  
1. The Plaintiff must declare on one Title only; and therefore in the Case of the Lord Chandois and Pitts, the Count was of three several Leases of the whole to the Defendant; the Council prayed that one B. may be made Defendant, and that the Plaintiff might elect to proceed on one only Title, which the Court granted, and said, Altho' the Party may declare on several Leases, one at, and another from such a Day, yet cannot declare on several Lessors. And the Court ordered the Plaintiff to elect one Title only, Trin. 22 Car. 2. B. R.  
2. In Ejectione Firm 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. savil's Case.  
3. In Ejectione firm Surplsage in the Count, is not vicious, 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 alleged in what Vill the Tenements are. Vide infra.  
6. The Plaintiff must make his Title truly. Vide infra p. 72. b.  
The Entry to deliver Declarations in Ejectment, is not sufficient to avoid a Fine, without express Authority to enter to avoid the Fine; so was the Case reported, 2 Saunders 319. Tenant for Life levies a Fine sur Conisance de droit come ceo, with Proclamation, and he in Reversion for Life within five Years after the Death of Tenant for Life, directs one to deliver a Declaration in Ejectment to the Tenant in Possession; this shall not amount to an Entry to avoid the Fine, tho' this was the Declaration which contained the Lease upon which the Ejectment was brought, Keb. 555. Clerk and Pymell. M. 21 Car. 2. B. R.   

DECLARATION.  
In Ejectment in B. C. the Plaintiff there declares in the first Declaration, 
Variance between the Imparlance-Roll and Issue Roll, as to the Commencement of the Lease.  which is called the Imparlance-Roll, of a Lease made the 20th of September for five years than next ensuing; and after Imparlance upon the Issue-Roll (for there the Plaintiff useth to declare again after Imparlance) the Plaintiff declares of a Lease made the 30th of January the same year Habend' for five years from the 20th of December before; and upon Issue found pro Quer' per Cur', its erroneous; for he declared upon one Lease, and went to Issue upon another; for when a Lease is made the 30th of January Habend from the 20th of December before, this is but a Lease in Interest till the 30th of January, and not before, and only in Computation from the 20th of December, 
The Imparlance-Roll is the material Declaration.  and by the Prothonotaries, the Imparlance-Roll is the material Declaration; and if Variance be from it in matter of Substance, this is not good nor amendable, tho' it was urged, That the last Declaration shall be taken as a new Declaration, without any Reference to the other, and then it shall be good, 1 Roll. Rep. 448. Millward and Watts. 3 Bulstr. 229. Millward and Watts. Cr. Jac. 415. mesme Case.  
But in Merril and Smith's Case, Cro. Jac. 311. the first Declaration was, That T. S. 25th of March 6. Jan. let to the Plaintiff the Land, etc. for seven years, by Virtue whereof the Plaintiff entered and was possessed until the Defendeant postea scil. Anno sexto supradict ' entered 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 Judgement; and this was assigned for Error; 
The first Declaration is most material.  per Cur' the first Declaration is the principal and material Declaration, and the second is but a Recital of the first. And if any matter of Substance be omitted in the first, it cannot be aided and amended by the second, for that gins with an Alias prout patet, so it is but a mere 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 Judgement 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 alleged, Cro. Jac. 311. Merril and Smith.  
Original in Ejectment was brought against H. 
Simul cum.  and three others, and the Plaintiff counts against three of the Defendants, and no Simul cum against the fourth, and Judgement was arrested for this, 2 Brownl. 129.  
It's a sure Rule, 
Entry and Ejectment supposed before the Commencement of the Lease.  if the Entry and Ejectment be supposed in the Declaration to be before the Commencement of the Lease, the Declaration is void, as in Powre and Hawkins' Case cited, Yelv. 182. in Davis' Case. The Plaintiff declares upon a Lease of E. 27 April. Anno sexto, and lays the Ejectment to be the 26th of April Anno sexto supradict ', the Declaration was adjudged ill for this cause; but the Court will, and have helped 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 Message, etc. and that the Plaintiff entered and was possessed qu●usque postea the Defendant 18 die ejusdem mensis Maij Anno sexto supradict ' ejected him; it was moved in Arrest of Judgement upon Verdict for the Defendant (to save Costs) that the Declaration was insufficient, 
This Action is grounded on two things (viz.) the Lease and the Ejectment.  for that this Action was grounded on two things (viz.) upon the Lease and upon the Ejectment, and these two ought to be one after the other; and in this Case the Ejectment is supposed an Year before the Lease made; for the Lease is Anno septimo, and the Ejectment supposed to be made Anno sexto, yet the Declaration was adjudged good, and the word sexto to be void: For the day of the Ejectment being the 18th day ejusdem mensis, it shall be intended to be in the same year in which the Lease is supposed to be made, Brownl. p. 146. mesme Case. So in adam's 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 Judgement was against the Plaintiff for this Defect. The Council of the contrary side stood much upon the Case of adam's and Goose; but per Cur' that Case differs from this; for in Adams' Case it appeared to be, that he entered by source of the Lease, and was possessed thereof till he was ejected; but in this Case he entered the 24th of June, which was before the Lease commenced; and Judgement was given, 1. Because he said, he entered the 24th of June, and so was a D●isseisor. 2. Because the Declaration is contrary in itself. And Clifford's Case, Dyer 89. a. and Gr●en and Moody's Case were cired. Bridgman said, He found no reason for adam's and Goose's Case, Yelv. 182. Davis and Pardy. Cro. Jac. 97. adam's and Goose Siderf. p. 8. Goodgaine and Wakefeild.  
Ejectione Firm of a Lease of H. 
Virtute cujus & iisdem die & anno he ejected him, how construed.  P. 22 of May 20 Jac. of, etc. Hab. à primo die Maij for three Years, virtute cujus the Lessee entered and was possessed quousque postea scil. eisdem die & anno the Defendant ejected him. It was assigned for Error, that iisdem die, etc. refers to the first day of May, which is ultimum antecedens, and then the Ejectment is alleged 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 entered postea iisdem die & Anno, etc. that refers to the day of the Lease made, otherwise he cannot be possessed virtute dimissionis, and Judgement 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 entered, 
Virtute cujus.  and was possessed until he was ejected by the Defendant. Not guilty pleaded. The Declaration is ill, because the time of the Entry is not alleged; for if he entered at the day of the Demise, he is a Disseisor, and the Action not maintainable; 
Virtute cujus. how taken.  the strongest shall be taken against the Plaintiff (viz.) That he entered the day of the Lease made, and that is not supplied by the words virtute cujus; but no Judgement was given, because two against two: yet in Dyer 89. in margin it's said, because he did not aver in facto, that he entered after the day of the date (for the Lease doth not commence till the next day) that Judgement was arrested absent Popham. And another case is there cited, M. 44. or 42. El. B. R. in Ejectione Firm upon a Lease made to commence at Michaelmas, and the Plaintiff declares, That he, virtute dimissionis, etc. And it was moved in Arrest of Judgement, because he saith not, he entered 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 borough in Ireland, and Judgement pro Querente. 
Virtute cujus & praetextu cujus, he entered.  It was assigned for Error that the Plaintiff shows a Lease made to him to commence at a day to come, virtute cujus he entered, and was possessed until ejected by the Defendant, and shows not when he entered, either after or before the day at which the Lease commenced; sed non allocatur, because he said virtute cujus, etc. But by Lea Chief Justice, if he had said praetextu cujus, it had been otherwise, Moor 466.  
Ejectment of a Lease made the 12 of Dec. 
Commencement.  Habend' à primo die. On Not guilty, the Jury find a Lease made in haec verba, which was dated primo Decemb. Hab. from henceforth, but delivered the 12th of Decemb. and the Question was. Whether this be according to the Declaration? It was objected, That from the day of the Date, and from henceforth are several Commencements, for the one gins the day it was sealed, the other the day after, but per Cur' they are all one, being a Computation of time from the time past, 
Habend. à die datus expounded.  and both shall be pleaded to begin from the day of the Date, when the Lease is afterward sealed another day. But if he declares of a Lease the first of December, Hab' à die datus, the Ejectment cannot be alleged the same day; but if the Lease be made the first of Decemb. Hab. henceforth, the Ejectment may be alleged 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 alleged postea the same day is good enough, Cro. Jac. p. 258. Lluellyn and Williams. And p. 135. Osborn and Ryder.  
Ejectione Firm of a Lease dated the 6th of December 17 Jac. Hab. à die datus, upon Evidence the Lease was showed, 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. Judgement was arrested. It shall not begin from the time of the Delivery; 
Uncertain Limitation of the Commencement of the Lease.  but it's an uncertain Limitation, and cannot be known what November he meant, last passed, or next ensuing. But the Law will reject an impossible Limitation, as from the 31st of Septemb. because it cannot be any part of the Parties Agreement. The Declaration was, Quod cum J. H. by his Indenture bearing date the 20th of May, 32 Eliz. 
No day of the Delivery shown.  had let to him an House, and shows not when the Lease was made; for he doth not show any day of the Delivery, per Cur' it's good: For it shall be intended to be delivered at the day of the Date, Mod. Rep. p. 180. 3 Leon. p. 266. Kniver and Cope.  
In Ejectment of the Manor of D. 
Variance.  containing 250 Acres, be it more or less, with Letters of Attorney reciting, Whereas J. the Lessor had made a Lease of a Manor containing 250 Acres, and Authority to make Livery according to the recited Lease, per Cur' the Variance is fatal, and the Plaintiff was nonsuited, 3 Keb. 691. Smith and Talbot, M. 18 Car. 2.  
Plaintiff declares, 
In what Vill.  That P. C. by Indenture apud S. let unto him an House and 20 Acres of Land by the Name of all the Tenements in S. After Verdict Judgement was Arrested, because it was not alleged in what Vill the Tenements are, 
Per nomen.  and the naming of the Vill in the Pernomen is not material, Cr. El. 822. Grace and Chapman.  
50 Hobert 89. Rich and Shere. Declaration was, That at E. in Com' predict ' he did demise one Message, four Gardens, Two hundred Acres of Land, Eighty Acres of Pasture called East-Dizard in the said County. On Not guilty the Plaintiff had Judgement; it was Error, because the Plaintiff in his Declaration did not show in what Town, Parish, Hamlet or Place the said Tenement called East-Dizard lay; and Judgement was reversed in the E● chequer-Chamber.  
Declaration was of a Lease of Serjeant Helena, That he, the 16th of January, 44 El. by Indenture dated the 2d of January, demised, etc. it was moved, That the Declaration was not good, because it is that he demised the 16th of Jan. by Indenture dated the 2d of Jan. 
When the Lease shall be intended to be delivered on the day of the Demise, and not of the Date.  and he does not say primo delibat ' the 16th of Jan. for otherwise it shall be intended to be delivered the day it bears date. But per Cur' it's good; for tho' a Deed shall be intended to be delivered the day it bears date, unless the contrary be showed, 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 alleged, 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, etc. Habend' terminum praedict' à die datus sigillationis Indenturae praedictae for three years; virtute cujus the Plaintiff the 10th of June 19 Jac. entered, and was possessed until, etc. and Verdict pro Quer ' on Not guilty, per Cur. ' when the Verdict has found him guilty upon the Declaration, and the Ejectment is alleged 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 Judgement pro Querente, Cro. Jac. 646. Heaton and Hurlestone.  
Now in Wakely and Warren's Case, 
Virtute cujus & praetextu cujus he entered; the difference between them.  tho' the Plaintiff does not show in his Declaration when he entered, 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 entered, and was possessed until, etc. aliter had it been, if he had said praetextu cujus, 2 Rolls Rep. 466. Wakely and Warren.  
Now the Judge's 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, etc. 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, than 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 Firm of a Lease made the 20th of August Hab. from Michaelmas than last passed ante datum hujus Indenturae, and neither shown the Indenture nor the Date thereof, and per Cur' it's well enough. The Addition ante ●●tum Indenturae shall be void, the other being good, 
Et postea how expounded.  and the beginning of the Lease appearing certain enough, Hetley 63. Brady and Johnson. Cro. El. 606. Darrel and Middleton.  
Ejectione Firm of a Lease made the 21st. of Octob. 4 Jac. & quod postea scilicet eodem 21 die Octob. Anno tertio supradicto he ejected him: And the Addition of an Year, which was not mentioned before, and which is repugnant to that day which was mentioned, is idle, and shall be taken for null, & postea the same day shall be good enough, Cro. Jac. 154. Brigate and Short.  
Error was assigned, 
Ejectment of the 4th part of an House in 4 parts to be divided, and declares de tenementis praedictis.  for that the Plaintiff did Count of the Lease of the fourth part of an House in N. in four parts to be divided, by force of which he entered in tenementum praedictum, and was inde possessionat ' till the Desendant did eject him de tenementis praedictis, whereas he ought to suppose his Entry into the fourth part, and the Ejectment of the fourth part, sed non alloc '; for the Entry and Ejectment supposed de tenementis praedictis shall not be intended of the entire Tenement, but of the fourth part of the House, according to his Declaration, Cr. El. 286. Rawson and Mainard.  
Ejectment for Tithes, not saying by Deed, Judgement was reversed, 2 Keb. 376. Angel and Rolf.  
The Declaration was of several Messages in the several Parishes of St. Michael, St James, St. Peter and St. Paul, and that part of the Premises lay in the Parishes of St. Peter and St. Paul; but that there is no Parish called the Parish of St. Peter, nor none called the Parish of St. Paul; per Cur' the Copulation (Et) shall be referred to that which is real, and hath existence, ut res magis valeat, to make them both one Parish; and the words, several Parishes, is supplied by the other Parishes aforenamed, Hardr. 336. Ingleton and Wakeman.   

By Coheirs or Coparceners.  
Declaration by Coparceners, 
Quod demiserunt.  Quod dimiserunt is good; therefore Molliner and Robinson's Case, Moor 682. where the Lease was made by two Coparceners, and it was declared, Quod dimiserunt: To which it was excepted, that the Lease is the several Lease of each of them for his Moiety, which was there ruled a good Exception, is not Law, 2 Brownl. 207. Cro. El. 615. 2 Keb. 192. Moor 682.  
And now Ejectments in such Cases are by the Lessee of a Lessee of the whole by many Coheirs, 
Coheirs declare by the Lessee of a Lessee, and why.  which is by reason of the Uncertainty of the part claimed by the Lessors; and per Cur' a Lease of all parts warrants the Lease of all, 2 Keb. 700.   

By Tenants in Common.  
If Two Tenants in Common join 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 cattle 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 Firm 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 allege 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 joint-tenants.  
C. and R. and W. Daughter to R. are joint-tenants for years; W. lets her part to C. and C. and R. join 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. Yeluerton and Williams è contra, because the Count supposeth they both let the entire as joint-tenants; for so it is intended by the general Count, which appears to be false, for they two let two Parts jointly, and the one of them having a third Part, as Tenant in Common, 
Two as joint-tenants, and one as Tenant in Common, demise the Commons, in such Cases how to declare.  let's that only, and so the Declation ought to have showed the Truth and the Special Matter. And because it is difficult, they use in such Case to make a Lease, and the Lessee to make a second Lease, and the second Lessee to declare generally; and so all the matter shall come in Evidence. Fleming, before whom it was tried by Nisi prius, overruled it, that this Declaration was well maintained by the Lease, and the Jury gave a Verdict according to his Opinion, Cro. Jac. p. 83. Jordan and Steere.   

Upon a Lease by Tenant for life and him in Remainder.  
A. Tenant for life, Remainder to B. in fee, they both by Indenture join in a Lease to the Plaintiff; Per Cur' this is the Lease of A. during his Life, the Confirmation of B. and after the Death of A. it is the Lease of B. and the Confirmation of A. And because the Plaintiff in Ejectment had counted of a joynt-Lease by A. 
Verdict.  and B. it was adjudged against him, 6 Rep. 15. Treport's Case.  
So is the Case in Popham p. 57 upon a Demise by Dorothy Pool and Robert Smith, it was thus on a Special Verdict: Dorothy was Tenant for Life, Remainder to Smith in Fee, and they being so seized, made the Lease in the Declaration, Per Cur' the Lease found per the Verdict doth not warrant the Lease alleged 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 Precedent, Fellows and Scholars of St. John's College, 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' Case.  
Hill. 36 El. Carter and Cromwell, in Ejectione Firm, the Plaintiff counts per Lease made by the Warden of All-souls College 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' Judgement shall not be arrested for this on Judgement by cognovit Actionem at the Assizes, 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 enrolled, but the Declaration was of a Demise made after the Indenture and before the Inrolment; and whether that Demise were sufficient to entitle the Lessor of the Plaintiff, was the Question in Perry and Bow'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 Firm.   

By Administrator.  
He ought to show 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 shows not how the Archbishop granted it, either as Ordinary, or by his Prerogative; 
Precedents not to be changed.  and this was held by the Court to be a material Exception. But because all the Precedents in B. R. and B. C. were so in general, without showing how, and because they would not change Precedents, they disallowed the Exception, Cro. El. p. 6. Dorrel and Collins.  
In Gillam and Lovelace's Case, it was moved in Arrest of Judgement, That the Declaration (brought by Administratrix) was not good; because the granting forth Letters of Administration was in this manner (viz.) Administratio commissa fuit querenti per William Lewin vicarium generalem in spiritualibus Episc. Rot. without averring, that at the time of the granting Letters of Administration, 
Vicar-General.  the Bishop was in remotis agendis, for a Bishop present in England, cannot have Vicarium; but per Cur' the Vicar-General in spiritualibus amounts to a Chancellor; for in the Truth, a Chancellor is Vicar-General to the Bishop. 2. The Declaration is not Episcop. Roff. loci illius ordinarii, but per Cur. all the Precedents are so, and in a Declaration such Allegation needs not, but by way of Bar 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 Firm was brought of a Lease of Tithes, and shows not that it was by Deed, and ruled to be ill, because Tithes cannot pass without Deed, Cr. Jac. 613. Swaddling 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 entered, 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 Precedent of Declarations in C. B. in B. R. in Scacario. The Endorsement 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 Firm, 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 show 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 entered upon him, & illum à firma sua praedicta termino suo nondum finito extratenet, etc. and he did not aver 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 Firm 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 aver 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, 
A new Declaration delivered on the Essoyn-say.  in Car. 2. Snow and Cooley's Case, upon Motion, ordered, That a new Declaration delivered on the Essoyn-day, should be sufficient (the old one being delivered before) the Lessee dying, and the Name was changed, there being sufficient Notice; and this being the Act of God, shall not prejudice, 1 Keb. 755.  
If the Declaration in Ejectment be delivered after the Essoyn-day, 
The Declaration is delivered after the Essoyn-day, and the Consequence.  it is but entered of that Term (and not of the Term before) and the Plaintiff in such case cannot have Judgement the same Term; but if he doth not move the following Term to have Judgement (especially if any Assizes intervene) he cannot have it without new notice left at the House of the Defendant, and the Default made at first, 1 Keb. 721.  
If the Declaration in Ejectment be of Michaelmas-Term, 
What day the Bill was filled, is examinable, whether after the day of the Lease, tho' it's the same Term.  which relates to the first day of the Term, yet it's a matter of Evidence, and examinable what day the Bill was filled, and if it was after the day of the Lease, all is well. On a special Verdict it was moved for the Defendant, That the Declaration was in Michaelmas-Term, 2 Jac. 2. and the Demise is laid to be the 30th of October, 2 Jac. 2. and so after the Term began. Note, the Declaration cited an Original, and an Original was produced, Teste 2. Nou. which was after the Demise; and the Prothonotaries informed the Court, That this was frequently allowed, and that no Memorandums of the Originals bearing Teste within the Term, was used to be made upon the Record, Sid. p. 432. Prodger's Case. 2 Ventr. Tonstale and Broad.  
It is the Course of the Court in Ejectment, if the 
* If the Owner prays to be made Defendant, the Declaration to be entered as of the same Term, but no new Imparlance.  Owner of the Land comes in and prays to be Defendant, the Declaration shall be entered 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 filled be paid for, 
Where Copies of the Declaration need not be paid for.  they need not pay for the Copies, and so a Trial at Bar shall not be hindered for want of payment of the Copies, 2 Keb. 805.  
I find a Rule of Court to change the year, thus: ss. Mich. 13 Car. Ordinat est per Curiam nono die Octob qd quer' narrationem suam in intratione inter partes de Termino St. Trin ult intxat in Anno dimissionis emendavit Et ubi per misprisionem Clerici allegavit dimissionem fieri duodecimo die Aprilis Anno undecimo Caroli fieri debuit Anno duodeeimo & quer' solveret Def. miss per Magistr● Gulston taxand pro emendatione illa ex motione Magistri Boon.  
Lessee for three years makes a Lease for five years in Ejectment to try the Title, 
Lease not warranted by the Declaration.  and the Jury on special Verdict doubt whether the Defendant be guilty for 3 or 5 years; Per Cur' the Declaration is ill, and the Plaintiff can have no Judgement; Per Hale the Lease is good only for three years, 
Declaration.  and the Defendant shall be guilty for no more, else the Plaintiff would recover Terminum predict ', which is five years, but no Judgement 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 than last passed for five years.  
THIS was tried at the Bar, 
Argument.  and a Verdict for the Plaintiff; and the Defendants have moved in Arrest of Judgement, 
Argued at the King's Bench before Lord C. J. Holt, etc.  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 aught to be amended, etc. for these Reasons, wherein I shall only apply myself 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 Judgements shall be stayed or reversed after Verdict for any Mistake in the Christian Name, Day, Month or Year, by the Clerk, where the right Name, Surname, Day, Month or Year in any Writ, Roll, Plaint or Record preceding, 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 entered 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 entered on the Roll, and the Method of proceeding is in the same manner, as in the Common Pleas, the Issue is as much amendable by the Imparlance-Roll as it would have been by the Bill, if the Action had been brought by Bill.  
The Objection made to this, 
Pulestone and Goodluck.  is, That tho' Tenants in Possession being not all duly served in the Country, the Tenants agree to appear so as the Plaintiff would consent to try it at the Bar, and that thereupon there was a new Declaration delivered, which had this Mistake, and seems to infer, that the former Declaration was waved, and this was altogether a new Proceeding, wherein the Court was misinformed; for there was no new Declaration delivered, and that which the Defendants produced, was a Copy of the Issue only, and proved nothing but that there was a Mistake, which appears by the Roll, and is admitted by the Plaintiff, otherwise we need not this motion.  
Now, my Lord, that the Defendants Appearance was to the Declaration delivered in the Country, is plain, for there was no other Declaration delivered, nor was therein any other for them to appeal to; besides, it appears by the Rule wherein it is written Pulestone and Goodluck, and under that the now Defendants shall be made Defendants in the room of Goodluck, and shall confess Lease, Entry and Ouster for the Lands in that Declaration mentioned, and shall receive a Declaration, and plead the General Issue, and insist upon the Title only; and that if the Plaintiff shall become Nonsuit for default of the Defendants confessing Lease, Entry and Ouster, than that Judgement shall be entered against the Defendant Goodluck, etc.  
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 Judgement 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 show a Declaration that was delivered them against Goodluck, wherein there was this Mistake, it would be hard upon us; but if they cannot, than 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, than 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, aught to make the Record according to the Fact they have tried.  
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 Judgement in Ejectment by Confession, and the Demise laid after the Judgement, and amended after a Writ of Error brought, because it was a Judgement by Warrant of Attorney; for it should not be supposed that the Defendant gave a Warrant of Attorney to confess a void Judgement.  
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 entitled to the Benefit of it, because we are Purchasers, 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 Judgement upon that Declaration, and the Return of the Postea is Warrant for that Judgement; 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 Proceed 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 Proceed, 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 Surname, 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 entered 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 Premises 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 entered 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 shows itself; 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 entitled 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 aught 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 than last passed, and the words in the Declaration are dimiser ', in the Writ, and demisissent in the Count; and that the Plaintiff entered by Virtue thereof, and was possessed, and the Defendant ejected him, his Term being not ended, etc. 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, than this is a Deed from the time of the execution, and the Term commences from the 25th day of March before.  
Or else this being an impossible date, must be altogether rejected, and then Trinity Term and the 25th day of March being all the times that are certain in the Declaration, the Confession is that betwixt the 25th day of March 1696. and Trinity Term following the Plaintiff's Lessors demised, the date being no essential part, and then this is a good Demise for five Years from the 25th of March 1696.  
Greater Mistakes than these have been amended after Verdict.  
Lees and Sir Nathaniel Curson, 
Mich last.  Bar. in Ejectment, wherein the Plaintiff's Lessor being an Infant, the Declaration was, That the Infant demised by his Guardian, which was no Demise, and the Cause being tried at Staff. last Summer Assizes, the Defendant's Council insisted on the Mistake, and relied thereon, and it being referred by consent to the Judge, and a Verdict given for security, the Judge referred the matter to the Court of Common Pleas, who amended it, though never right in any of the Proceed.  
The Bishop of Worcester's Case in this Court, 
15 Car. 1. Haslefoot and Cade, after Verdict the day in Record is altered after Verdict.  where there were five Defendants and but three of them pleaded, and after Verdict amended, and the Verdict was recorded against two, that no Issue was jonyed against in the Record of Ni. pr.  
Camberlain against the Hundred of Tundring upon the Statute of Hue and Cry, 
14 Car. 2.  where it was ordered, That the Record both of the Declaration and Issue should be amended by the Attorneys, and this was before Trial.  
Ours is a far stronger Case; for this Amending, if it had been before Trial, would not have altered the Issue, or any-wise influenced the Merits of the Cause.  
Now, My Lord, we are entitled 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 Purchasers 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 Judgement 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 Judgement 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 tortuous, 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 entering upon our Possession and ejecting us.  
But the Court said, It could not be amended, and Mr. Levet brought a new Trial and recovered.   

Declarations when amendable or not.  
In Ejectment where the Title is material, 
Declaration amended after Plea, without paying Costs.  the Plaintiff amended his Declaration after Plea (but while all was in Paper) in the date of his Action, without Costs paying, 1 Keb. 14.  
After Verdict and Judgement the Declaration cannot be amended, 
After Verdict and Judgement no Amendment of a Declaration.  for that might attaint the Jury: As in Ejectment of the Rectory of H. and other Tenants, virtute cujus intravit in tenementa praedicta. Verdict and Judgement de Rectoria & Tenementis praedict', 
Aliter in Judgement and Acts of the Court.  it cannot be amended; but on such Omission in Judgement or Acts of the Court it were amendable, but not of the Declaration. But in this case the Court conceived it well enough, 
(Tenements) include a Rectory.  and that the word Tenements includes Rectory, whether there be Glebe or not, but not so of a Manor, Hill. 25 and 26 Car. 2. Bale's Case.  
If the Plaintiff in Ejectment declare of an House lying in two Parishes, 
Declaration of an House lying in two Parishes, and the House lies in one, it's good.  if the House do lie in either of the Parishes, and do not lie in both of them, yet the Declaration is good; for there is certainty enough in it, Pract. Reg. 110.  
It must be alleged in what Vill the Tenements are; 
It must be alleged in what Vill the Tenements are.  the Plaintiff declares that P. C. by Indenture apud F. let unto him one House and twenty Acres of Land by the Name of all her Tenements in S. per Cur' the Declaration is not good, because it is not alleged in what Vill the Tenements are; for the naming of the Vill in the Pernomen, was not material, and so Cr. El. 822. Grace and Chapman.  
The Plaintiff declares of a Lease of one Message ten Acres of Land, 
Where the Pernomen is not good.  twenty Acres of Meadow, twenty of Pasture by the name of one Message, ten Acres Prat. be it more or less; after Verdict a Nil cap. per Billam was entered: For upon the matter by the Plaintiff disclosed in his own Declaration he cannot have Execution of the Quantity found by the Jury: for in the Lease there is not but ten Acres demised, and these words in Judgement of Law, cannot be extended to thirty or forty Acres, and the rather because the Land demanded by the Declaration, is of another nature than that mentioned in the Pernomen; for this goes only to the Meadow, and the Declaration is to the arable and Pasture, Yelv. p. 166.  
In this Action it was moved in Arrest of Judgement, 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, etc. and that he entered into the Premises 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 gins a new Sentence; but per Cur' the Habend' shall be a good Limitation of both Demises for five Years, and when it is showed that the Plaintiff entered into the Premises demised to him in forma praedicta, 
Forma predict ' how construed.  that is an Averment that all was demised to him, for that it is forma praedicta, 2 Ventr. 2. W. and M.  
In Ejectment the Plaintiff need not count of the demise of more Acres than the Acres out of which he was ejected; 
Declaration need not be of more Acres than he was ejected.  and a demise may be pleaded of any Parcel without mentioning the entire; as if one demise to me two Acres for Term of Years, and I am ejected out of one Acre by a Stranger, Now I shall have Ejectione Firm, and count that one Acre was demised to me, without any mention of the other Acre, 1 Saunders p. 208.  
Where one declares on a fictitious Lease to A. 
One fictitious Lease to A. and another to B. the same term, the last is not good.  for three years, and within the same Term declares of another fictitious Lease to B. of the same Lands, the last is not good; for Trespass for the mean Profits must be brought in the first Lessee's Name, ut dicitur.  
As to the Form.  
Ejectment was against two, 
Declaration against two, expulit.  and the Declaration was intraverat & expulit; and it was amended, Yelv. 223.  
Vi & armis are left out in the Declaration, 
The Omission of vi & armis in the Declaration.  Cro. El. 340. Griffith and Williams' 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 Judgement 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 Derby. 1 Keb. 164.  
In B. R. the Transcript of Trespass and Ejectment was the Placito Transgressionis & Ejectionis, omitting Firm, it was amended. And in B. R. it would be amended in the Record itself before Removal, 1 Keb. 106.  
Exception was taken in Godb. 
The Omission of Extratenet in the Declaration.  60, 71. because the Plaintiff did not say in his Declaration Extratenet; but per tot' Cur' those Words were not material; for if the Defendant do put out the Plaintiff, it is sufficient to maintain the Action. So if it be à possessione sua ejecit instead of à firma sua ejecit, it's good; for ejecit à possessione inde, inde hath relation to the Farm, Godb. 60, 71.  
In Ejectione Firm the Writ and Declaration were of two parts of certain Lands in H. and saith not, in two parts in three parts to be divided, and yet it was good as well in the Declaration as the Writ; and this difference was taken Per Cur' By intendment and Construction of Law, 
Demand of a part without showing into how many parts divided.  when any parts are demanded without showing in how many parts the whole is divided, that there remains but one part not divided; as if two parts are demanded, there remains a third part; and when three parts are divided, there remains a fourth part: But if any demand be of other parts in other Form, there he ought to show the same specially, as if one demands three parts of five parts, or four parts of six, etc. 13 Rep. 58.  
Declaration in Ejectment is Quod cum such an one dimisit, 
Declaration in Ejectment with Quod cum, is good, not so in Trespass.  it's good here, because he cannot have the Action without a Lease; but in Trespass, as Assault and Battery, etc. it is not so. And Dodderidge took this difference, Where the thing on which the Action is brought, hath continuance, and where the Action is brought for a thing done and passed. In Ejectione Firm there the Lease hath still Continuance, and there such a Declaration with a Quod cum, is good, because it is in the Affirmative; but where the thing is past, as Battery, it ought not to be with a Quod cum, 2 Bulstr. 214. Sherland's Case.  
As for the manner of declaring in respect of the thing demised, vid. supra titulo, Of what things an Ejectment lies: To which I shall add one Case in the Exchequer. Ejectment for so many Acres of Meadow, and so many Acres of Pasture, on Non culp ' the Jury find a Demise de Herbagio & Pannagio of so many Acres. 
De Herbagio.  Per Cur' by the same Reason that an Ejectment lies of a Lease of Herbage, by the same Reason the Plaintiff ought to declare accordingly; and Herbage does not include all the Profits of the Soil, 
Herbage does not include all the Profits of thd Soil.  but only part of it, Hardr. 330. Wheeler's Case in Scacario.  
The Form of a Declaration from a Parson of Rectory and Tenements in B. R. with an Averment of the Parson's Life, 1 Rep. 149. Chedington's Case.   

The Form of a Declaration in Ejectment in the Common Pleas. Mich. 16 Car. 2.  
Tempest.  
Mid 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, etc. 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 & plenary 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, etc. in Tenementa predicta cum pertin que pndict S. prefat' W. in forma predicta dimisit ad terminum pricked qui nondum preteriit intravit & ipsum a firma sua predicta ejecit ac alia enormia, etc. ad grave damnum, etc. & contra pacem, etc. On. de dicit quod deteriorat est & damnum het ad valentiam decem Librarum & inde ꝓduc Sectam.  
Et pndict A. p G. I. Attornat suum ven & defend vim & injuriam quandque, etc. I. Lo. usque Octab Hillarij.   

In the King's Bench.  
TH. queritur de jacobo W. 
Wart ss.  in custod Marr Marese Dom Regis coram ipso Rege existen ꝓ eo videst quod cum H. M. Gen ultimo die januarij Anno Regni Dom nostri Caroli secundi nunc Regis Anglie, etc. vicesimo, apud B. in Com predict dimisisset concessisset & ad firmam tradidisset pfato T. unum Messuagium & duas Arras Pasture cum pertiu scituat jacen & existen in B. pndice habend & tenend renementa predicta cum pertin prefato T. & assignat luis a vicesimo quinto die Decembris tunc ult pnteris usque plenum finem & terminum quinque annorum extunc ꝓxime sequen & plen●r̄ & finiend complend virtute cujus quidem dimissionis idem T. in tenementa predicta cum pntin intravit & fuit inde possessionat quousque pndict jacobus postea scilt eodem ultimo die januarij anno Regni dict Dom Regis nunc vicesimo supradict vi & armis, etc. in tenementa predicta cum pertinen in & super possessionem ipsius T. inde intravit & ipsum T. a possessione sua predict termino suo pndict inde nondum finite ejecit expulit & amovit ipsumque T. a possessione sua pndict extratenuit & adhuc extratenet & alia enormia ei intulit contra pacem dict Dom Regis nunc ad damnum ipsius T. 20 l. Et inde ꝓdue Sectam, etc.   

In the Office of Pleas in the Exchequer.  
A. B. 
Derb ss.  debtor Dom Regis nunc venit coram Baronibus hujus Scacarij duodecimo die Februarij hoc Termino p C. D. Attorn suum & queritur p Billam versus E. F. present hic in Curia eodem die de plito Transgressionis & Ejectionis Firme pro eo videlt qd cum quidam I. B. secundo die Feb Anno Regni dict Doni Regis nunc vicesimo primo apud, etc. (ꝓut supra in B. R.) ad vamnum ipsius A. decem Librarum Quo minus, etc. Et inde producit Sectam, etc.  

A Copy of the Declaration you must leave with the Occupier of the House and Land, with this or the like Endorsement.  
JAmes B. yond may perceive that I am sued for the Message and Lands within mentioned, being in your Possession; these are therefore to desire you to defend your Title, or else I shall suffer Judgement to be entered 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 Judgement, 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 Premises 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 Judgement will be entered 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 Judgement to be entered against the casual Ejector; for if the Defendant plead nothing to this Action, 
No Judgement against the casual Ejector but by motion of the Court.  but let it pass by Nihil dicit, the Judgement cannot be had upon a common Rule, as in Actions of Debt, and such like, but by Motion of the Court, because it is to alter Possession.  
After the Declaration delivered, 
What is to be done after the Declaration delivered.  the Person whose Interest is concerned, aught to retain an Attorney, who is to give his Client's Name to the Plaintiff's Attorney, that so he may be made Defendant instead of the casual Ejector; and then a Rule is to be entered by Consent, as follows:   

Robinson. Pas. 15 Car. 2. Regis.  
D. versus M. in Ejectione Firm 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. pndict Yeom quod idem T. admittatur defendens qui indilate comparebit p Attorn suum pndict & recipiet narrationem & plitabit adinde generalem exitum hoc Termino & ad Triaconem 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 pndict T. in aliquo pmmissorum default fccerit Et ex consimili assensu ulterius ordinat est per Cur quod pndict T. nullum capiet advantagium versus querent ꝓ ejus non ꝓsecutione super Triatione occasionat p hujusmodi defaltam sed quod pndict T. solvet querenti custagia Prothonotar 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 Firm & plitabit adinde non culp▪ & super triatione exitus cogn dimission intration & actualem Ejectionem & stabit super titulum tantum alit judicium intretur per default versus modo querent Et si pdict W. H. super triatione exitus illius non cognose dimission intracon & actual eject' p qd quer ꝓsequi ulterius non potest quod tunc nu● mis sive custag' super tali non pros adjudicentur Et ulterius ordinat est qd si veredict redditum fuerit pndict W. H. vel predict quet non pros foret ꝓpter aliquam aliam causam ꝓ qm non cognost dimission intracon & 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 Judgement 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 Premises in question, a true Copy of the annexed Declaration, with an Endorsement 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 Judgement to pass against me by Default, whereby you will be turned out of Possession. Your Loving Friend, C. R. Dec. 12. 1679. Which said Endorsement 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 Premises in question; and another Copy thereof to C. D. Tenant in Possession of the Residue of the Premises in question; upon which said several Copies was subscribed or endorsed to this effect, etc. Which said several Indorsements he the said Deponent did read to the said several Tenants, etc.    

CHAP. VIII.  
Of Plead 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 shows 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 Assizes 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 prior, 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 Firm how a Bar in another.  
THE General Issue in Ejectione Firm is now settled 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 aught to be pleaded in Ejectione Firm, especially in inferior 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 ', 
That the Plaintiff had another Ejectment depending.  It is a good Plea in Abatement of Ejectione Firm 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 Firm, 
Action commenced▪ and the Term expires pendant the Suit.  if the Term be expired before the Action brought, the Writ shall abate, because he ought to recover the Term and Damages; but if he commence the Action before the Term expire, and it expires pendent the Writ, there it shall not abate, but he shall recover Damages, Dyer 226.  
Entry of the Plaintiff hanging the Writ, 
Entry of the Plaintiff hanging the Writ.  shall abate the Writ.  
In Williams and Ashet's Case the Defendant would have pleaded Entry after the Verdict in Abatement of the Writ, 
Entry after the Verdict, and before the day in Bank, is not Error.  but it was hold clearly he had not day to plead it, but it is put to his Audita Querela. But in Parkes and Johnson's Case, in Ejectione Firm the Error assigned was, That the Plaintiff after Verdict, and between the day of Nisi prius, and the day in Banco, had entered, 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 Judgement shall be examined, Cro. El. 181. Ashet's Case. Cro. El. 767. Parks and Johnson.  
The Plaintiff declares of one Message and forty Acres of Land in Stone. 
Abate, because he shows not in which of the Vills the Lands lie.  The Defendant imparles till another Term, and then pleads, That within the Parish of Stone are three Vills A. B. and C. and because the Plaintiff does not show in which of the Vills the Lands lie, he demands Judgement of the Bill, & quod ob causam praedict' Billa praedicta cassetur. The Plaintiff demurs, and adjudged for him. 
After Imparlance no Pleading in Abatement, and why.  For, 1. after Imparlance the Defendant may not plead in Abatement of the Bill, for he had accepted it to be good by his Entry into defence, and by his Imparlance 2. 
Reg. Where a Man pleads in Abatement, he ought to give to the Plaintiff a better Writ.  The matter of the Plea is not good, because the Defendant does not show in which of the Vills the Message and forty Acres lie. And where a Man pleads in Abatement, he ought to give the Plaintiff a better Writ, and upon Demurrer there shall be a Respondeas Ouster, Yelv. 112. Tomson and Collier.  
After Verdict for the Plaintiff (the Question being brought against Baron and Feme) that the Husband was dead since the Nisi 
Ejectment against Baron and Feme; Baron died since the Nisi prius, and before the day in Bank, the Action continued against the Wife.  prius, and before the day in Bank; and whether the Bill should abate in all, or should stand against the Feme, was the Question; and because it is in Nature of an Action of Trespass, and the Feme is charged for her own Fact, it was adjudged that the Action continued against the Feme, and that Judgement should be entered against her sole, because the Baron was dead, Cro. Jac. 356. Rigley and Lee.  
Ejectione Firm by J. S. against N. and O. N. 
Where the Plaintiff by his demand, confesseth the Writ abateable.  appears and pleads the General Issue, and Process continues against the other until he appears, and then he appears and pleads an Entry into the Land puis darrein Continuance. Judgement 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 Judgement. 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 Firm 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▪ its only in Abatement, 
Entry before the Nisi prius to be pleaded at the Assizes.  and there is a Diversity between this and Death, 1 Bulstr. 5. And it's usual if the Entry be before the Nisi prius, to plead such a Plea at the Assizes, and if it be omitted, the Advantage is lost; but not so in case of Death: By Death the Writ is actually abated, 
Difference between Entry after Verdict and Death.  there being no time to plead it in Court, but Entry must be pleaded puis darrein Continuance in Abatement only, Sid. p. 238. Boys and Norcliff. 1 Keb. 841, 850. mesme Case.  
Shall not abate by the Death of the Lessee. 
Not abate by the Death of the Lessee.  Vid. 3 Keb. 772.   

Of pleading to the Jurisdiction: Conisance of Plea, how to be demanded and allowed, and how pleaded.  
This Plea was formerly allowed of, and so is still in some Cases.  
Now every Plea which goes to the Jurisdiction of the Court, 
Regula, for a Plea to the Jurisdiction of the Court.  aught to be taken most strong against him that pleads it; and to this purpose there is a pretty Case.  
In Ejectment the Plaintiff declares of a Lease made at Haylsham; 
Al' Jurisdict'.  the Defendant pleads, That Haylsham praedict. ●ubi tenementa jacent, is within the Cinque-Ports where the King's Writ runs not; 
Cinque-Ports.  and so he pleaded to the Jurisdiction of the Court. The Plaintiff replied, That the Town of Haylsham was within the County of Sussex, absque hoc, that it was within the Cinque-Ports. The Defendant demurs, 
Travorse.  because he ought to have traversed absque hoc quod Villa de Haylsham ubi tenementa jacent, is within the Cinqueport; for the truth was, it was part in the Cinque-Ports, and part in the County of Sussex, and the Land lies in the part which is in the Cinque-Ports; but per Cur' the Traverse is good, and the Bar is naught. The Defendant in his Bar ought to have made his Distinction, and every Plea which goes to the Jurisdiction of the Court, aught 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, aught to show his Warrant of Attorney in Latin, Sid. 103. in the Bishop of Ely's Case.  
The Attorney General in Hales and Jull's Case prayed Allowance of the Plea, 
Cinque-Ports.  that the Lands in the Ejectment were within the Cinque-Ports, which the Court granted, there being no Imparlance General or Special, both which affirm the Jurisdiction of the Court; and at the Venire fac ' the Plaintiff may suggest the Lands to be within the Cinque-Ports, and have it of Places adjacent within the County, 1 Keb. 65,  
Sir Edward Turner in Ejectment, 
〈◊〉. Conisance not allowable on Suggestion, but it must be averred on Record.  ore tenus, showing his Warrant of Attorney, demanded Conisance for the Bishop of Ely; per Cur' it's not allowable on Suggestion, which is Cinque-Ports, Ancient Demesne, etc. It must be averred on Record; for tho' the Court takes notice that Ely is a Royal Franchise, yet this must be so averred or pleaded, and may be after Imparlance, 
It must be averred or pleaded, and may be, after Imparlance in Ejectment.  when any third Person is concerned since the new way of Ejectment used in Green and Simpson's Case, but Siderfin is contra that it cannot be pleaded after Imparlance, 1 Keb. 946. 948. Sid. 103.  
The Defendant prayed to be admitted to plead in Abatement, 
Where Conisance of Plea not allowed of in Ejectment.  that the Lands in the Ejectment are within the Cinque-Ports, and the rather, for that he was made Defendant by the Rule of Court, with a special Imparparlance (with a salvis omnibus, etc.) Per Cur' let him plead in Chief; unless in Ancient Demesne no special Plea has been allowed, because the Lord would be prejudiced in a Trial at Common Law, 1 Keb. 725. Hale and Uppington.  
In Hall and Hugh's Case in Ejectment of Lands, 
Part within and part without the Cinque-Ports, and demur.  part within and part without the five Ports, the Defendant, after Imparlance, pleads in Abatement, That part of the Lands are in the Five Ports, and so prays Judgement, si Curia cognoscere velit, etc. The Plaintiff demurs, because it does not appear but that the Demise was out, and it's transitory, and may be laid any where, tho' the Lease was actually sealed in another Place or County; and the Defendant may plead Non dimisit, 
Where Non dimisit pleadeded in Ejectment.  as well as Not guilty. The Demise in this Case was laid at Maidstone; per Twisden this being an inferior Court, they cannot try the Demise, which is issuable, 
Why the new Rule of confessing Lease, was introduced.  and the great Mischief that came in want of Proof of the Demise, was the cause of introducing the new Rule. In this Plea it was said, That the Lands were in F. parcel of the Cinque-Ports, where time out of mind, the Writ of our Lord the King runs not, and that they of F. have always tried, etc. this is ill; 
Prescription must be to the five Ports, and not to F. only.  for the Prescription should have been annexed to the Five Ports generally, and not to F. only; and the Court ordered him to plead in Chief, and to confess Lease, Entry and Ouster, or else that the Plaintiff take Judgement against his own Ejector, 2 Keb. 69, 79.  
1. Whether Ancient Demesne pleaded, be a good Plea? 2. Whether it may be pleaded after Imparlance?  
In Cro. Car. 9 it was a Question, Whether Ancient Demesne may be pleaded after Imparlance. 
Ancient Demesne a good Plea in Ejectment, and why.  It's resolved, That Ancient Demesne is a good Plea in Ejectione Firm, and in Replevin; tho' it was doubted in our Books formerly, but that is fully settled in several Reports. In Alden's Case, 5 Rep. the Defendant pleads, That the Tenements in which, etc. were parcel of the Manor of O. in Com. S. Quod quidem manerium est de antiquo Dominico, etc. and demands Judgement, si Curia hic vult cognoscere, etc. 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, etc. The Plaintiff shows 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. Styles 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 Firm, 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 Firm, 
Whether Ancient Demesne is pleadable after Impalance.  and after pleads that the Land is Ancient Demesne, etc. & unde intendit quod Curia non vuit cognoscere, etc. The Plaintiff demurs: Per Cur' this Plea is pleadable after Imparlance, because if Judgement be given here the Lord will rever●e it by Deceit, and the Judgement will be avoidable, and the diversity is true, 
Regula.  A Man may plead that which is in Bar after an Imparlance, but not that which goes to the Writ; and this holds in all Cases but Ancient Demesne. 2. The last Conclusion is Surplusage; 
Conclusion of Plea.  but if he had begun his his Plea. Actio non, it had been ill, notwithstanding the Conclusion, ut supra. But the Defendant waved his Demurrer without Costs, and pleaded to Issue, if Frank-fee, or not: And yet Hetley saith, p. 117. It was agreed by all, that Ancient Demesne is a good Plea in Ejectment, but not after Imparlance, Marsham and Allen's Cas. Dyer 210. in margin.  
But now if a Man come in and pray to be made Defendant, and to plead specially Ancient Demesne, he shall do it; and it's now used of Course to plead Dilatories after Imparlance, 
New Defendant not to plead Ancient Demesne after the former Imparlance.  1 Keb. 361. Holiday's Case. But in 1 Keb. 706. by Windham the new Defendant (one that prays to be made so) may plead Ancient Demesne after the former Imparlance, because it's not any Ouster of the Court of Jurisdiction. Cur' e contra. He ought to plead Not guilty personally, Roch and Plumpton's Case. And in 1 Keb. 755. 
Plea of Ancient Demesne allowed the same Term,  Snow and Cooley. The Court will allow Plea of Ancient Demesne the same Term, contrary to the ordinary Rules in Ejectment. And in Sutton and Courtney's Case it was prayed by Council, That the Defendant might have Liberty to plead Ancient Demesne to a Declaration delivered before the Essoyn of this Term, 
And how.  as of last Term, which the Court granted, and ordered him to attend the Scondary to settle the said Plea, which is usually done by making the Plaintiff deliver a new Declaration, as of this Term, and so the Plea cometh quasi before Imparlance, 2 Keb. 725.  
In David and Lyster's Case, Rolls said Ancient Demesne is a good Plea after Imparlance; for it goes in Bar of the Action itself, and not in Abatement of the Writ, Stiles 90.   

Plea puis darrein Continuance.  
Ejectione Firm was brought for entering into three several Vills: 
Release puis darrein Continuance before the Justices of Nisi prius▪ they can not take it.  The Declaration makes mention of no Vill in certain. The Defendant pleads a Release puis darrein Continuance before the Justices of Nisi prius. Per Cur ' a Man cannot plead a Release at the Nisi prius after Issue joined, for so none should have Judgement. 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 joined, 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 Session's 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 Firm against two, one appears and pleads the General Issue, and Process continues against the other, who now appears and pleads Entry puis darrein Continuance in Abatement of the Writ: Upon which the Plaintiff demurs; and after Issue was found for the Plaintiff, 
Demurrer a Confession of the Entry.  he shall not have Judgement, for the Demurrer is a Confession of the Entry, and shall abate his own Writ; for in this Action the Term is to be recovered, aliter if he had imparled. Vide supra Plea in Abatement, Dyer 226.  
Upon a Special Verdict in Ejectment, 
Release pleaded at the day of the Argument.  and a day given for Argument, before which the Defendant procures a Release of all Ejectments, and at the day for the Argument, pleaded the Release puis darrein Continuance, and good; aliter of a Release between the Nisi prius and Day in Bank, because there he had no day in Court, nor has he any Remedy but by Audita Querela, if the Plaintiff sued Execution, 2 Rolls Abr. 467. Wykes and Bunbury. Cr. Jac. 646. Stamp and Parker.  
Ejectment was brought of Lands in K. and two other Villages. 
Entry puis dar' Count ' 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 entered 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 Firm the Defendant may plead at the Assizes before the Justices of Nisi prius, That the Plaintiff had entered 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 Firm, 
By this Plea. the first Issue of Not guilty is discharged.  after pleading Not guilty a Release is pleaded puis darrein Continuance whereby the first Issue is discharged, which the Court granted. And tho' the Justices cannot try it at Nisi prius, unless they think it but Colour and insufficient, yet if he think it sufficient, he must sign a Bill of Exceptions, for the Trial is Error; and so Yelv. 
Bill of Exception.  181. And in this Case the Release of the Lessor of the Plaintiff is but Colour: Also the Party cannot demur to such Plea; also the Agreement to try and stand to the Title only, is no Cause to overrule such Plea; and per Cur' the Plea certified hither, was allowed notwithstanding such Agreement being gained after, 3 Keb. 67. Mich. 24. Car. 2. Carter and Haggard.   

Accord and Satisfaction a good Plea in Ejectment.  
H. P. brought Ejectione Firm against R. C. and A. his Wife, and A. D. for an House in G. in, etc. 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, etc. 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', etc. 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 prior; where Aid shall be granted in this Action, and in what Cases not.  
The Defendant justified as in his Franktenement the Reversion to the King, 
The Defendant shall not have Aid of the King, and why.  and prayed in Aid of the King, per Cur' he shall not have Aid in this Action, which is as a Trespass upon this Plea; for he needs no Aid of the King to maintain this Plea. So in Allen and Hallowel's Case, the Defendant pleads, That the Queen was seized in Fee, and let it to J. S. for years by Patent, who let it to the Defendant, and prays in Aid of the Queen; and it was ruled to be no Plea, because he is not immediate Tenant; wherefore a Respondeas Ouster was awarded. And in Bridgman's Rep. 87. it is agreed, That the Defendant shall not have Aid of the King, because he is not his immediate Tenant, and so no Privity between the King and him. And to the same purpose is Anderson's Case in Hardress's Reports. The Defendant prayed in Aid of the King's Lessee for 99 years for his Duchy Land in trust for the Queen, as part of her Jointure, 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 Firm 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. Bennets Case. Cro. El. p. 374. Allen and Hollowell. Hardr. 179. Anderson and Arundel. 1 Rolls Abr. 148.  
But Aid lies in Ejectione Firm (of a common Person) when the Title of the Land is to come in question. 
Defendant shall have Aid of a common Person.  And if a Man recover in Ejectione Firm against J. S. who dies, in a Scire factas against his Heir, the Heir shall have Aid of him in whose Title his Ancestor claims, 1 Rolls Abr. 161, 162.  
In Ejectment the Defendant pleaded Not guilty, 
A Writ not to proceed (Regina inconsulta) allowed.  and after Issue joined, the Queen sent a Special Writ to the Court, reciting, that how the Defendant was Tenant in Tail with divers Remainders over, the Reversion to the Queen, and that her Reversion might be prejudiced by this Trial. Wherefore it was commanded then not to proceed to the Trial of this Issue, Regina inconsulta. And it was a Question much debated, whether this Writ were allowable or not, because it is a personal Action only. Per Cur' this Writ ought to be allowed (as well as Aid prior) because it appears to them, that the Queen may be prejudiced in her Title; and by the Writ there is a Recital of a Title in the Queen; and her Trial of Right is to be discussed in Chancery, 
In such Case where the King's Trial of Right to be dismissed.  where the Queen's Records are to prove her Title; therefore per Curiam we shall not proceed without a Procedendo. Vid. 1 Anders. 280. Blofeild and Harris. Cro. El p. 417. Sale and Barrington. Moor 421. mesme Case. Hardr. 428.  
In Trespass for breaking his Close. 
Recovery and Execution in a former Action pleaded in Bar.  The Defendant pleads, That before this he had brought Ejectione Firm against the now Plaintiff, and recovered, and had Execution, etc. Judgement si actio. Per Curiam it is a good Bar, and the Conclusion of the Plea is also good. Judgement, si actio, without relying upon the Estoppel, 1 Leon. p. 313. Kempton and Cooper.  
Ejectione Firm 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, etc. the Plaintiff in his Replicat' said, He was possessed till by the said five Defendants, who pleaded in Bar, he was ejected; and by his Declaration he has supposed himself to be ejected by all the six Defendants, and so a Departure from the Declaration in the number of the Ejectors: But Curia contra. 
Several Issue.  For Drake by his several Issue which he has joined with the Plaintiff upon Not guilty, is severed from the other five Defendants; and then when they plead in Bar, the Plaintiff ought to reply to them, without meddling with Drake. So in Ejectione Firm 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 possessed 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 joined, 2 Leon. p. 199. Holland and Drake.  
It was moved for the Defendant, 
In this Action not to plead specially without Consent of the Plaintiff.  that he might have Liberty to plead specially in an Action of Trespass and Ejectment, and not generally Not guilty, because there had been matter given in evidence at a former Trial, which ought not to have been. By Rolls, if the other will not consent, you shall not plead specially, but proceed according to the Course of the Court, Stiles Rep. 412.  
Note, The Defendant by Rule of Court, 
Defendant not to plead till Costs assessed in a former Action was paid, and Security for new Costs.  was not to plead till Costs paid, assessed in a former Action on Nonsuit, and that another Plaintiff might be named, or that Security be given to pay the Costs, if the Plaintiff should be Nonsuit again, Stiles p. 433.   

Bar or Recovery in one Ejectione, how far a Bar or Recovery in another.  
It was a Question, Whether a Bar in one Ejectione Firm were a Bar in another? 
Bar in one Ejectione Firm, how a Bar in another.  And Justice Berkley said, It was adjudged upon this Difference, That a Bar in one Ejectione Firm is a Bar in another for the same Ejectment, but not for another and new Ejectment. 
Recovery in one Ejectione Firm 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 Firm, and demanded Judgement. Per Cur' it is a good Plea prima fancy, 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 Firm against the other; that if afterwards the other bringeth an Ejectione Firm 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 Firm against the now Plaintiff, and recovered, and had Execution, Judgement, 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, Judgement si actio, without relying on the Estoppel and by two Justices it is no Estoppel; for the Conclusion shall be Judgement si actio, and not si serra respond ', and it was well pleaded. For as by Recovery in Assize the Freehold is bound, so by Recovery in Ejectione Firm the Possession is bound. And by Anderson a Recovery in one Ejectione Firm, 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 Judgement is good. habeat possessionem termini sui, during which Term the Judgement 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 Firm against two Defendants, one confesseth the Action, and the other pleads in Bar Non Culp'; per Cur', though in Trespass against two, 
2 Defendants, one confesseth, the other pleads in Bar, he cannot leave the one, and proceed against  and the one makes Default, and the other confesseth the Action, he may well relinquish his Suit against him who makes Default, and proceed against the other which confesseth or pleads in Bar, because this Suit is only in point of Damages; but not so in Ejectment he cannot relinquish his Suit against one, and proceed against the other; for if so, any Man may be tricked, 2 Bulstr. 113.  
Expiration of the Term in Ejectione Firm, is no Plea, Latch. 106.  
Upon a Trial at Bar between Odil and Terril, a Juror was challenged, for that he said to one of the parties, Provide you to pay, for if I am sworn, I will give the Verdict against you. And that this is true, the Parties to whom the Words were spoken, did offer to depose the same; and the Question was, if he should be suffered to swear this, he being one of the parties; and he was allowed by the Court to be sworn to prove the Challenge good; 
the other. The Juror had bought Land of the Eessor.  and for this Cause the Triers found him not to be indifferent, and so he was withdrawn. Another Juror was challenged in this case, for that he had bought Land of one of the parties in the Suit (viz.) of the Lessor, and that the Lessor did owe to this Juror 10 l. and notwithstanding this Challenge the Triers found him indifferent, otherwise per Cur' if the Juror had owed Money to one of the parties, 1 Bulst. 20, 21. Odil and Terril.    

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, 
Cousin to the Lessor.  it's not a principal Challenge, that the Sheriff is Cousin to the Lessor in Ejectment, for the Lessor cannot hinder the Action of the Lessee (this is not Law) 1 Rolls Rep. 328. 2 Rolls Rep. 181. Banisters Case.  
Venire fac ' awarded to the Coroners upon Surmise that the Lessor was Servant to the Sheriff. 
Lessor Servant to the Sheriff.  Q. if it be a principal Challenge; if it be no principal Challenge, then is not the Writ well awarded, and is not aided per Stat. 32 H. 8. Cro. Jac. p. 21. Harebotle and Placock.  
Challenge to the Sheriff, 
The Sheriff Cousin to the Plaintiff.  and a Venire fac ' prayed to the Coroners, because the Sheriff is Cousin to the Plaintiff, and shows how; and because the Defendant did not deny it, a Venire fac ' was awarded to the Coroners, and Judgement was arrested, because it was not a principal Challenge, and a Venire de Novo awarded to the Sheriff, 1 Brownl. 130. Cradock and Jones.  
It is not any principal Challenge to a Juror (in Ejectione Firm) That he had married the Cousin-german of A. 
That a Juror had married the Cousin-german of A.  who was the Wife of R. from whom is descended H. from whom is descended B. who have the Reversion of the Land in question after the Death of his Mother, who is to had an Estate for Life; this is not any princapal Challenge, because the Estate of B. does not appear in the Record, and he had not the immediate Reversion, 2 Rolls Abr. 654. Gabriel Dennis' Case.  
In the Lord Brooks' Case, the Court was informed, That the Lessor of the Plaintiff, was High Sheriff of the County, and that the Coroner was Under-Sheriff; 
Elisors.  and it was prayed that that Elisors might return the Jury, but the Court would not grant it at the Prayer of the Defendant, though the Plaintiff offered to agree to it, it being in a Trial of Nisi prius; but had it been in a Trial at Bar, the Court would have granted it; 
That the Lessor of the Plaintiff is High-Sheriff, a principal Challenge.  but the regular Course is for the Plaintiff to pray it, or else the Defendant may challenge the Array at the Assizes; for it is a principal Challenge, that the Lessor of the Plaintiff is High-Sheriff, or of Kindred to the 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, 
Elisors.  whose Interest was concerned, and prayed the Venire fac ' to Elisors, and had it, being confessed by the Defendant, and the Court took it as a principal Challenge, Duncomb and Inglesby's Case.  
In Ejectione Firm the Array was challenged, 
Challenge of the Array to the Lessor.  because it was made at the Nomination of the Plaintiff, and by Consent of the Parties, two of the Attorneys of the Court did try the Array. The Trial of the Array is good, either by the Coroners or by two Attorneys, Godbolt 428. Williams and Lloyd. 2 Rolls Rep. 363, and 131.  
In Ejectione Firm 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. 
Note.  But now in our feigned Ejectments it is otherwise, because the Title of the Lessor is only in Question, 2 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 show it for Cause, till the Panel was perused. Per Hale, Chief Baron, 
Challenge for Default of Hund●edors on Trial at Bar.  It is against the common Course to take a Challenge for want of Hundredors', when the Trial is at the Bar, upon a Jury returned at the Denomination of an Officer of the Court where there are but four and twenty left by the Parties themselves. But if this Challenge be taken to the Polls, it must be taken presently, and the special Cause assigned (viz.) want of Freehold there, Hardr. p. 228. Attorney-General and Pickering in Scaccario.  
In Ejectione Firm upon a Lease made in G. of Land in T. In G. predict ' 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 Samson.  
The Lease is made apud Curdworth of Lands lying in parochia de Curdworth predict ', the Issue was the 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 showed 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 predict. 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 Firm, 
The Issue of Not guilty refers to the Ejectment where the Land lies.  if the Plaintiff declare of a Lease made 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, 
Ven' fac' amended.  they both plead 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 Firm of Lands in D. and the Visne was from the Parish of D. 
The Vill and the Parish intended all one.  and Verdict 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 fancy 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 the Vicineto parochiae de Bredon, which was ill; for the Lease and Ejectment are alleged 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 Tithes are alleged 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 alleged by the Plaintiff in his Count, 11 Rep. 25. 6. Harpur's Case.  
Ejectione Firm versus B. for ejecting him of certain Lands in Creeting St. mary, Creeting St. Olaves and in Creeting omnium Sanctorum; and the Venire fac ' was the Vicineto de Creeting St. Marry, 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 Panel 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 Surname; 
Difference in Law between a Surname and a Name of Baptism.  for a Man can have but one Name of Baptism, but may have two Surnames, as George for Gregory, and being sworn at the Nisi prius, it's a void Verdict, Cro. El. p. 57 Displyn and Spratt.  
Ejectione Firm of a Lease apud Denham in Lands of the Parish de Denham predict '; 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 Firm, and it was not amended; for tho' Ejectione Firm is but a Plea of Trespass in its nature, yet the Actions are several, and therefore the Venire fac ' aught to be accordingly, Cro. El. 622. Clerk's Case.  
Ejectione Firm 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 Firm the Plaintiff declares of a Lease of Land in B. Pernomen of, etc. in B. C. etc. The Venue from B. is good, 2 Rolls Rep. 479. Taylor and Lenn.  
The Appearance and Issue were in Hill. 
Venire fac' amended.  1 Jac. and the Bail was 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 joined. 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. 
Another Person sworn on the Jury, who was not returned, it's no Error because Estopple.  Corpora, and 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 showed. 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 Firm upon a Lease made at D. 
Where it shall not come de Corpore Comitatus.  in Comitat' E. of Land called S. If Not guilty be pleaded, and a Venire fac ' awarded the 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 Shear.  
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 Firm against four who plead Not guilty, 
Where the Sheriff is of Affinity to the Defendant.  if the Plaintiff suggest that the Sheriff is of Affinity to one of the Defendants, showing how, and upon this prays a Venire fac ' to the Coroners, and the Defendant does not deny it; and upon this the Venire fac ' is awarded to the Coroners, it is well awarded. For altho' none of the Defendants may challenge the Array, because the Sheriff is of Affinity to one of the Defendants, yet the Plaintiff ought at the Trial either to challenge the Array, and so delay himself, or he ought not to try this during the time that he his Sheriff, which would be a great delay, 2 Rolls Abr. 668. Fox and Shepherd in Exchequer-Chamber.  
Vide Raymund 572. Consent may make a Trial had in a foreign County, good.  
In Ejectione Firm of three Acres of Land in Forresta de K. 
Visne de Forresta.  in Com. etc. 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 Firm against Baron and Feme; 
The Wife found Not guilty, and a Special Verdict as to the Baron, which was insufficient, a Venire fac' de nove awarded for both, and why.  on Not guilty pleaded, and a Venire fac ' granted, the Jury find the Wife Not guilty, and find a special Verdict as to the Husband, which Special Verdict is afterwards adjudged insufficient, a Venire fac' de novo shall be awarded for both, as well the Wife as the Husband. And upon this new Writ the Wife may be found guilty, because the Record and Issue is entire; and for this their Verdict is insufficient in all, and void. Vid. infra Tit. Special Verdict.   

CHAP. X.  
Of joining 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 joined, the Defendant pleads Not guilty, and it was entered, 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 Assizes 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 Proceed in the mean time. And the words in the Stat. W. 2. c. 27. 
Stat. W. 2. c. 27.  are, Postquam aliquis posuerit se in aliquam inquisitionem ad prox' diem allocet ' ei Esson '; import, That the Essoyn shall not be taken at the return of the Process against the Jury, altho' the Jury be ready at the Bar. But than it was surmised, that the Defendant was not Essoyned; for the Name of the Defendant is E. H. and it appeared at the Trial, 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 Judgement pro Quer'. Note, No Statute gives Amendment but in the Affirmance of Judgements and Verdicts, and not in Defeasance of Judgements and Verdicts, 1 Leon. p. 134. Woodel and Harel.  
In Dyer 89. the Plea was, quod non ejecit querentem de, etc. 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 Firm the Parties were at Issue, 
In what Case no Verdict shall be entered.  and by the Order of the Court the Trial was stayed, yet the Plaintiff privily obtained a Nisi prius; and the Chief Justice being informed thereof, awarded a Supersedeas unto the Justices of Assize, before whom, etc. and yet the Inquest at the instance of the Plaintiff was taken, and found for the Plaintiff; and all this matter was showed to the King's Bench, and per Cur' no Verdict shall be entered on the Record, nor any Judgement on it, 2 Leon. p. 167. Feild, Leich and Cage.  
Ejectione Firm against Drake and Five others. Drake pleads Not guilty; the others pleads, the Plaintiff reply; 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 joined, 
One Defendant pleads Not guilty, the other demurs; no Judgement upon the Demurrer till the Issue be tried.  and to have Judgement against the Five Defendants who had demurred, yet the Court was clear of Opinion, That no Judgement should be given upon the said Demurrer, till the said Issue was tried. For this Action is in Ejectione Firm, 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 joined, the Plaintiff shall have Judgement presently, 2 Leon. p. 199. Holland and Drake.  
In B. R. 
Writ to prohibit the Trial, Rege inconsulto.  after Issue joined in Ejectione Firm, 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 prior, and it was allowed, Moor 421, 583. Nevil and Barrington.  
A Suit in the Spiritual Court pro jactitatione Maritagij, stays not Trial, 1 Keb. 519.  
Ejectment in Brecknockshire, 
Stat. 27 H. 8. Marches.  it was tried in Monmouth-shire since the 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 Judgement 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 returned by the Sheriff of the Queen's County, 
Consent to alter the Trial entered upon the Roll.  Hob. p. 5. sed non alloc '; for the Consent of the Parties to this Trial was entered upon the Roll, which was not in Hobart, but only in a proper Rule of Court, and therefore the Judgement there was reversed, as 1 Rolls Rep. 28. Crow and Edward's; with this accords Cr. El. 664. Sir Thomas Jones. 199. Devoren and Walcott.  
A new Trial was denied in Ejectment, 
New Trial denied, and why.  tho' the Verdict was given contrary to the Direction of the Court in matter of Law, because it was a Trial, and because it is not final; Sir Thomas Jones 224. Earl of Thanet's Case.  
Ejectment was brought for Lands in the County of Clare in Ireland. Issue was joined on Not guilty, and then there is an Entry on the Roll, 
Consent to a Trial in a Foreign County.  Et super hoc pro indifferentitriatione exitus praedict' inter parts praedict' eaedem partes ex eorum unanimi Consensu, & Assensu, & Consensu eorum Conciliat' & Attornat', etc. petunt Breve Dom' Regis Vic's Com' Cork dirigend' de Veni●e fac' duodecim de corpore Comitatus sui ad triandum exitum praedict. Ideo praecept' est, etc. 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. Judgement was given for the Defendant. The Plaintiff brings a Writ of Error, whether Consent can make this Trial in a Foreign County, good; and per Cur' the Trial is well had, Raym. 372. Viscount Clare and Lynch. Hob. 5. 1 Rolls Rep. 166, 363. Palmer 100  
At the Assizes in Northumberland 15 Car. 
Nonsuit at Nisi prius discharged.  2. a Plaintiff in Ejectment was called and nonsuited, and this entered upon the Record before the Venire or Distringas, etc. was put in, and this appeared by the Postea produced; and so the Justices of Nisi prius had not power of Nonsuit, for their Power is by the Hab. Corpus, and therefore the Court discharged the Nonsuit, and gave leave to the Party to proceed again, Sid. 64. Tomsons Case.   

CHAP. XI.  
Of joining Issue and Trial. 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 canceled. 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 Firm 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 Judgement 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 Judgement for that Cause. And it was ruled to be Error in the Exchequer-Chamber in the Bishop of Landaff's Case. 
A Trial by Consent in other County than where the Land lies, is good in Ejectment.  But in Sir Thomas Jones' Rep. Devoren and Walcot's Case, it is held, That a Trial 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 Firm in London upon a Lease made of Lands in Middlesex, 
Trial in London of Lands in Middlesex.  if the Defendant plead Not guilty, this may be tried in London, because the Counties may not join, altho' the Jury ought to inquire of the Ejectment which was in Middlesex, 2 Rolls Abr. 603. Herbert and Middleton.  
But in Flower and Standing's Case in Ejectment, 
Moved in Arrest of Judgement, that the Lease was made at B. of Lands in another County▪ and the Plaintiff was not in Possession.  it was moved in Arrest of Judgement, That the Lease is made at B. of Lands in another County, which was moved to be ill, it appearing that the Plaintiff was not in Possession; sed non allocatur, for this is matter of Evidence, and it shall be intended it was after Verdict, and so is the common Course, M. 20 Car. 2. B. R.  
In Ejectment one may not have Privilege of Trial of Lands in Wales in the English County next adjoining, 
In the King's Case, 〈◊〉 shall be in the Exchequer, tho' the ●and lie in Wales.  for they are to be tried in the County where the Land l●es, otherwise it is if the King be Party it 〈◊〉 be tried in the Exchequer. This Action was brought by one of the Ushers of the Exchequer by Privilege, Savile 10, 12.  
Ejectment is brought against one in Custodia in B. 
Trial by Mittimus in the County Palatine.  R. of Lands in the County Palatine, and the Action was laid in B. R. and the Record was sent down by Mittimus from B. R. and a special Endorsement of the Postea; and thereof one prayed Judgement 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 Chamberlain.  
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 Trial is not allowable to try Conveyata, or not, this being a Windlass 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, 
Trustee.  the Interest in the Law being lodged in him. But by Hales a Trustee may be a Witness against his Trust, 2 Sid. 109.  
In Ejectment the Plaintiff challenged B. a Witness to a Devise, because he was Trustee in a Will, and had an Annuity; but he having released both before the Suit, the Court held him to be a good Witness, or if he hath received it, and tho' it be after the Action brought, Sid. 315.  
Interest in Equity disables a Man to be a Witness, 
Interest in Equity.  but one who hath an equitable collateral Title may be a Witness.  
Parishioners may be a Witness to a Devise by which the Parish claims Lands to the Relief of the Poor. 
Parishioners.   
Exception was taken against a Witness produced to prove the Lease of Ejectment, 
Witness had the Inheritance  because he had the Inheritance in the Lands let; but it was urged by the other side, That the Defendant did claim under the same Person that the Plaintiff did, and so the Witness was admitted to be sworn, Stiles Rep. 482. Fox and Swann.  
One Coparcener cannot be Evidence for another in Ejectment, 
Coparceners.  because she claims by the same Title, tho' she is not Party to the Suit; but the Daughter of her Sister may be sworn; for altho' she be Heir, yet her Mother may give the Lands to whom she will, being Fee-simple, P. 13 Car. 2. B. R. Truel and castle.  
In Ejectment of Tithes the Plaintiff excepted against a Copyholder in Reversion after an Estate Tail, 
Copyholder in Reversion after an Estate Tail.  for a Witness to prove the Boundary of a Parish, and he was set aside for the possibility which makes him partial, M. 20 Car. 2. B. R. Hitchcok's Case.  
In Ejectment of the Manor of S. 
Trespass.  on Issue out of Chancery to try the Number of Acres, the Defendant excepted to a Witness that had been a Trespassor, as Servant to my Lord Lee in the Lands in Question, an Action being depending: The Court set him aside, and thereupon the Plaintiff was Nonsuited, M. 20 Car. 2. B. R. Tuck and Sibley.  
Exception was taken against a Witness to prove the Execution of a Deed by Livery and Seisin, 
Estate at Will.  because he had an Estate at Will made to him of part of the Land, but it was dissallowed, vide Mod. Rep. 21, 73, 74, 107. Hob. 92.  
In Ejectment at Trial at Bar, 
Executor of the grant of a Rent.  the Title of the Lessor of the Plaintiff was upon the Grant of a Rent, with power to enter for Nonpayment; the Executor of the Grantor was produced as a Witness for the Defendant. It was objected against him, That in the Grant of the Rent, the Grantor covenanted for himself and his Heirs to pay it, and so the Executor being obliged, he was no competent Witness, 1 Vent. 347. Cook and Fountain.  
On on a Trial at Bar per Cur. If one of the Witnesses had part of the Lands in Question, 
The Witness Sells part of the Lnd before Trial.  and he sells or disposeth of it after his coming to London, or at any time after he had notice of Trial; he shall not be received to give Evidence, tho' he sell bona fide, and upon a valuable Consideration; and althô he himself be not Occupier of the Land, nor had been after the Writ purchased, but another by his Commandment, the Court will not suffer him to be a Witness, because if Verdict pass against him, he who acted by his Commandment may charge him in Action on the Case; 
Witness claimed Estate by Title Paramount both there Titles.  but upon Examination it appearing, That the Witness claimed an Estate for Life by Title Paramount both their Titles (viz.) Plaintiff and Defendant) he was Sworn, Siderf. p. 51. Wicks and Smallbrok's Case.  
Exception was taken against a Witness to prove Execution of a Deed of Feoffment by Livery and Seisin; Two Witnesses were subscribed to prove the Livery and Seisin, 
One who had Estate at Will to prove a Livery.  afterwards one of those Witnesses had an Estate at Will, made unto him of part of this Land, and because being produced as a Witness, to prove the Execution of the Deed was excepted against, because he was a party now interested in the Land, and so his Oath was to make his own Estate good. But per Cur' he may well be Sworn a Witness to prove the Livery and Seisin, this being in affirmance of the Feoffment, 1 Bul. 203.  
The Father testified a Deed in Persuance and Affirmance of a Lease, 
Father a Witness for the Son.  made to his Son by himself, which the Court allowed, his Interest being passed away, 1 Keb. 280. Jay and Ryder.  
In Ejectment on Extent, on Mortgage on Trial at Bar. The Defendant excepted to the Plaintiffs Witness, because his Father paid a Debt as Security with the Defendants elder Brother for the Defendants Father; but there being no Counterbond, and therefore doubtful in Equity, whethere he as Heir could recover any thing against the Defendant as Heir, the Court Swore him; but if he were to let himself into a certain Interest, though but in Equity, the Court will set him aside, 2 Rol. 345. Vincent and Tirrinsharp.  
In Ejectment, one Baker who had been Solicitor for P. the Defendant was produced as a Witness, concerning the Rasure of a Clause in a Will supposed to be done by P. The Question was, 
In what Case Solicitor, etc. not to give Evidence against his Client.  if he ought to be examined about this, because having been Solicitor, he was obliged to keep his Secrets; but it appearing that B. had made this Discovery to him, about which he was now to give his Evidence, before such time as he had retained him, Per Car. He was Sworn, aliter, if he had been retained his Solicitor before. The same of an Attorney or Councillor, 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 Daily 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 show it in Court; 
Record shown it Court.  so if a Record be Pleaded, it must be sub pede sigilli; but Evidence it's not absolutely necessary to show either, if it can otherwise be proved to a Jury, as in 1 Vent. 257. In Evidence for Lands in Ejectment in Ancient Demesne, the Court admitted of Evidence to prove a Record to cut off the Entail (which was lost) and it may be proved to a Jury by Testimony; as the Decree in Henry the Eighth's time, for Tithes in London is lost; yet it hath been often allowed there was one. And further in this Case it appeared, That part of the Land was Leased for Life, and the Recovery with a single Vourcher was suffered by him in Reversion, 
Long Possession.  and so no Tenant to the Praecipe; yet in regard the Possession had followed it a long time, the Court would prefume a Surrender.  
The Copy of a Record may be showed and given in Evidence to a Jury, 
Copy of a Record.  for Records are of so high a nature, and have such great credit in the Law, that they cannot be proved by any other means than by themselves, and no Rasure, or Interlineation shall be intended in them; and therefore a Copy of a Record being testified to be true, is permitted to be given in Evidence; but the sure way is either to exemplify it under the great Seal, or at least under the Seal of the Court, 10 Rep. Leyfeild's Case.  
In Ejectment for Lands in Brecknockshire; Upon Not guilty and Trial 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 itself. The Plaintiff Demurs to the Evidence, and the Question was, whether the Exemplification maintained the Issue or not. It was agreed, That a Sworn Copy of a Record in Wales might be given in Evidence, 
Exemplificacation.  but not an Exemplification, because the Court here ought not to take notice of such an inferior Seal; but if it were Exemplified under the great Seal, it would be Evidence and Proof though the Record itself were lost. And yet Whitehead's Case was, That an Exemplification under the Seal of the Mayor of Bristol, of a Recovery suffered there under the Town Seal, should be given in Evidence, though the Record itself could not be found.  
Note, It must be given in Evidence in the like manner as it is to be pleaded, and that is under the great Seal, Hardress 118, 119, 120. Henry Olive versus George Gowin. And by Hales, Exemplification of a Recovery in the Marquis 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 intent it; and in an ancient Recovery, they would not put one to prove Se●sin of a Tenant in a Praecipe, Mod. Rep.  
The Scyrograph of a Fine may be given in Evidence. 
Scyrograph of a Fine.  (but not delivered to the Jury, 2 Sid. 145, 146.) in a general Issue in Assize, Ploughed. Com. 411.  
Note, 
Fine and Non-claim.  If a Fine be given in Evidence with five years Non-claim, the Fine must be showed with Proclamations under Seal, and the Scyrograph will not serve.  
A Fine or Recovery, 
Fine, Recovery.  may be found by the Jury without showing it under Seal; but they cannot find against what is admitted by the Record, Sid. 271.  
The Copy of a Recovery was suffered to be given in Evidence, 
Copy of a Recovery.  the Recovery itself being burnt, Mod. Rep. 117. Green and Proud.  
The Court allowed an old Recovery, 
No Tenant to the Praecipe proved.  though no Tenant to the Praecipe could be proved, but it shall be intended, Cro. Jac. 455. Mod. Rep. 117.  
Nothing may be delivered in Evidence to a Jury, but that which is of Record or under Seal, but by consent, 2 Sid. 145.  
As to Letters Patents, vide infra Deeds. Dyer 167. The Jury find the Constat of Letters Patents.  
One may not show in Evidence to a Jury an Inspeximus of a Deed enrolled in Chancery, 
Inspeximus.  if it be not a Deed of Bargain and Sale enrolled there; for if it be a Deed of Feoffment, the Party must show the Deed itself, for the Inspeximus is no matter of Record, 
Inspeximus.  Stiles Rep. 445. But by Rolls, tho' the Inspeximus be the Inspeximus of the Inrolment, and not of the Deed itself, yet if it be an Ancient Deed, it may be given in Evidence.  
The Earl of— being a Popish Recusant convict, 
Conviction of a Recusant, the Record being burnt, proved in Evidence.  presented the Lessor of the Plaintiff to a Rectory, who was instituted and inducted, but the Record of the Conviction was burnt (as was supposed) in the Fire at the Inner-Temple. The Defendant offered to prove it by the Estreats thereof in the Exchequer, and by the Inquisition found and returned here of Recusant's Lands. Per Hale & tot' Cur', in such a Case as this a Record may be proved by Evidence, because the Conversion here is not the direct matter in Issue; as was Sir Paul Pinder's Case in an Action of Trover and Conversion for Goods, the Proof depended upon a Fieri facias and a Venditioni exponat; and yet in that Case, because the Fieri facias could not be found upon Record, 
Fieri fac ' proved in Evidence.  it was admitted to be proved in Evidence, Hardr. 323. Knight and Dawler.  
But when he that sues an Elegit, brings an Ejectment to try the Title, 
Elegit must be showed.  he must in Evidence show the Elegit filled.  
A Transcript of a Record, or Inrolment of a Deed, 
Transcript of a Record, or Inrolment of a Deed.  may be given in Evidence, for they are things to be credited, being made by Officers of Trust, but Inrolmene of a Deed which needs no Inrolment, is no Evidence.  
In Ejectment of Lands in the Parish of Long Hope; the Defendant pleads that they are part, and held of the Manor of Long Hope, which is ancient Demesne; and on Issue thereupon Doomsday-book was brought in, 
Doomsday-Book.  by which it appeared, That the Manor of Hope is the Land of W. de B. who held of the King; which Per Curiam doth not maintain the Issue, unless the Defendant had pleaded further, that the Lands are as well known by the Name of Hope as Long Hope; this Book is the Trial, and the Court cannot take notice of the same. Respondeas Ouster, 1 Keb. 520. Holdy and Hodges.   

Matters of Fait.  
As for Deeds shown 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 show 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 Judgement 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 razed or interlined, or upon Limitation, Condition, Revocation, and the like. Therefore it hath been always thought dangerous to permit any upon the General Issue to give in Evidence, that there is such a Deed which they have heard or read, or to prove it by a Copy. 
Deed proved by Copy or Testimony.  But in Cases of Extremity, as where Deeds are burnt by Fire; upon the General Issue the Judges will suffer to prove a Deed to a Jury by Testimony.  
And what hath been said as to the Legal Part of a Deed, holds as to Letters Patents.  
A Deed canceled by Practice, 
Deed canceled.  was allowed to be read in Evidence in Action under that Deed, the Practice being proved, Hetley 138.  
Lease and Release were given in Evidence to entitle the Plaintiff, and they were both named haec Indentura, and were not indented, yet good by Hales, Norfolk▪ Assizes, 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 itself. 
Lease and Release.  2. A Lease recited in the Release, was admitted to be proved by Witnesses to the Release, without showing the Lease itself, which was embezzled by the Lessor of the Plaintiff, P. 13 Car. 2. B. R.  
And the Copies of Deeds have been admitted in Evidence, the Original agreed to be burnt. So in Ejectment at the Bar, a Copy of a Deed burnt, made by the Witness, to carry about to Council, was allowed for Evidence; so was Do●se's Case at Oxon. and Thyn's Case. The Testimony of a Witness of the Contents of a Deed burnt, but such Witness was refused at Lent Assizes 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, etc. and after he claims under a Lease from a Nominal Prebendary thereof, founded in the Cathedral Church of Lincoln; and he offered (at a Trial at Bar in Ejectment) to read a Copy of a Lease out of the Leiger-Book of the Dean and Chapter of Lincoln, 
Copy out of a Leiger-Book no Evidence.  but it was disallowed per Curiam; for the Book itself is but a Copy, and a Copy of a Copy is no Evidence, P. 27 Car. 2. B. R. Cotterel's Case. Leiger-Books and Paper-Books cannot be exemplified, but when offered in Evidence, must be produced themselves, Hardr. 117, 118.  
The Recital of a Lease, without showing it, 
Recital of the Lease.  ruled to be no Evidence upon a Demurrer, Ra. Entr. 318. 1 & 2 P. & M. Rot. 13. B. R. cited. Hardr. 119, 120.  
A Copy of the Counterpart of a Lease, 
Counterpart of a Lease.  the Lease being Lost, allowed to be Evidence.  
Tho' the Seals be broken off a Lease, 
Seals broken off.  yet the Deed may be given in Evidence, 1 Mod. Rep. fol. 11. Q. if the Deed be pleadable.  
A Copy of a Court-Roll may be given in Evidence, 
Copy of Court-Roll.  where the Rolls are lost or not lost, 15 Car. 2. B. R. Snow and Cutler.  
For if a Deed be pleaded, 
Difference between pleading a Deed, and giving it in Evidence.  the Party must show it in Court; but if it be given in Evidence, it is not necessary to show it, if it can otherwise be proved to a Jury; for Witnesses may prove the Contents of a Deed or Will, and so the Jury may find them, the Deed or Will not being found in haec verba, Stiles p. 34. Wright and Pindar.  
A Deed made before the time of Memory, 
A Deed made before time of Memory. Ancient Deed.  may be given in Evidence, tho' it cannot be pleaded. An ancient Deed is good Evidence without proving or Seal to it, P. 17 Car. 2. B. R. Wright and Sherrard.  
A Will, 
Will. Probate.  under which a Title of Land is made, must be showed itself; and the Probate is not sufficient: Contra, if it were on a Circumstance, or as Inducement, or that the Will remain in Chancery or other Court by Special Order of such Court, 1 Keb. 117. Eden and Thalkill. 2 Rolls 678. So is Brett's A Probate of a Will by Witnesses for Lands, is not Evidence at Common Law. And nothing can be given in Evidence against the Probate of a Will, but Forgery of it, or its being obtained by Surprise, and so it's conclusive, Raym. 405.  
Error was brought of a Judgement in C. B. in Ireland in Ejectment: The Question was upon a Bill of Exception, for that the Justices of the Bench there would not direct the Jury, 
Bill of Exceptions on the Probate of a Will.  that the Probate of a Will before the Archbishop of Canterbury (the Testator dying in his Province) and also the Bishop of Fernes, were sufficient and conclusive Evidence, but only affirmed it was good Evidence, leaving it to the Jury. To which the other Party shows in Evidence Letters of Administration of the Goods under Seal of the Primate of Ireland. The Title was for a Lease for years in Ireland, claimed by the Lessor of the Plaintiff under the said Administrator: And Judgement was affirmed Per Curiam.   

Where Bills, Answers, Depositions, etc. in Chancery, shall be good Evidence in this Action, or not.  
In Ejectment the Defendant that made Title as a Purchasor under a Devisee, 
Bill preferred by the Heir against the Devisee, setting forth the Will.  and shown only a Bill in Chancery preferred by the Heir, under whom the Lessor of the Plaintiff claims against the Devisee, whereby the Will was set forth, and confessed in the Answer. But per Curiam it is no Evidence, tho' a Possession were proved accordingly in the Devisee, and that this had been confessed by the Plaintiff in a former Trial, 2 Keb. 35. Evans and Herbert. And yet in 1 Ventr. p. 66. A Bill in Chancery was said to be given in Evidence against the Complainant.  
On a Trial in Ejectment, it was showed 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 shown 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 entered into for the Cause aforesaid. But to that it was Answered, That P. was presented by G. but it appeared that G. acted as a Servant to M. the Patron; and it was opposed, 
Where a Copy of a Bill shall be read as Evidence.  That this Bill is no Evidence, because it only contains Matter suggested perhaps by the Council or Solicitor, without the Privity of the Party. But per Curiam the Copy of the Bill shall be read as Evidence, for it shall not be intended it was preferred without the Privity of the Party, and it being disclosed by the Party himself; otherwise they would not allow a Bill in Evidence, if there be not Answer and other Proceed upon it, Siderf. p. 220. Dr. Crawley's Case.  
But at a Trial, 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 Trial, or not.  
In a Trial at Bar between Mills and Bernardiston, an Answer of L. M. surviving Trustee, under whom the Plaintiff claimed, was offered for Evidence; but being after a Conveyance by him, the Court refused; but had it been before, it would be good against all claiming under him. 
Answer ' good Evidence against the Defendant himself, but not against other Parties.  But Twisden denied it, because an Answer does not discover the whole Truth, and therefore shall be only admitted against the Party himself that made it, and not of one Defendant against another, much less against a Stranger, 2 Car. 2. B. R. And by Ley, Chamberlain and Dodderidge, a Defendant's Answer in an English Court, is a good Evidence to be given to a Jury against the Defendant himself, but it is no good Evidence against other Parties, Godb. Case 418. 2 Rolls Rep. 311. Berisford and Phillips. And if the Defendant's Answer be read to the Jury, it is not binding to the Jury, and it may be read to them by the Assent of the Parties, Godb. 326.  
An Infant answered a Bill in Chancery by his Guardian; 
Infant's Answer by Guardian, not to be read in Evidence against the Infant.  and it was a Question in Leigh and Ward's Case in a Trial at Bar in Ejectment, where the Infant was Party, whether that Answer could be read in Evidence against the Infant? This Question was sent from the King's Bench by Justice Eyres to the Common Pleas to know their Opinion; and per totam Curiam it could not be read; for there is no Reason that what the Guardian swears in his Answer, should affect the Infant, 2 Ventr. 1 William and Mary.   

Where, and in what Cases Depositions shall be read at a Trial, and where not.  
Regularly the Depositions in Chancery or Exchequer, 
Depositions no Evidence, if the Party be alive.  of a Witness, shall not be given in Evidence, if he be alive: But if Affidavit be made, that he is dead, they shall in a Cause between the same Parties, Plaintiffs and Defendants, Godb. p. 193. Sir Francis Fortescue,  
Depositions taken in Chancery in perpetuam rei memoriam, 
Depositions no Evidence, without an Answer put in.  upon a Bill for that purpose exhibited, cannot be given in Evidence in a Trial at Law, unless there be an Answer put in and produced, Hardr. 336. Raymund. Watts' Case.  
Depositions taken before Commissioners of Bankrupts, 
Depositions before Commissioners of Bankrupts, no Evidence at a Trial.  shall not be used as Evidence at a Trial, altho' the Witnesses be dead; but Depositions taken before the Coroner, with Proof that the Party made them, if dead, shall be good Evidence, P. 18 Car. 2. Bick and Browning.  
Exemplification of Depositions under the Great Seal, 
Exemplificat' 〈◊〉 Depositio●●  988. whereby a Conveyance made in 986. was lost and proved: Per Cur ', being so old, and the Records of the Rolls burnt since, it is good Evidence; tho' the Bill and Answer were not in it, 2 Keb. 31.  
In Ejectment for Lands in Kent, it was held upon Evidence by the Court, and by Advice of other Judges, whom one of the Barons was sent to consult, That if one Witness be examined for the Defendant de bene esse to preserve his Testimony upon a Bill preferred, 
Examination taken before Issue joined, no Evidence, Hardr. 315. Brown's Case.  and before Answer, and upon an Order of Court for his Examination made upon hearing of Council on both sides; and if after Answer the Witness die before he be examined again, he being sick all the while, yet the Examination of such a Witness shall not be read in Evidence, because it was taken before Issue joined.  
Divers Depositions in Chancery taken de bene esse, 
Depositions de bene esse.  without Answer of the Defendant, were produced in Evidence; but the Court refused to permit the reading of such Depositions for Default of the Answer; and it was agreed, That the Court is not bound to such Evidence; but the Course in such Case is by Order of Chancery to require the adverse Party to admit such Evidence; but this doth not bind the Courts of the Common Law, Sir Thomas Jones p. 164. Poricye's Case.  
Two were made Parties to a Bill, one had Title, but the other does not claim Titile, but in his Answer sets forth many things which made for the Title of the other Defendant: And between other Parties in B. R. these Depositions were prayed to be admitted in Evidence to prove the same Title; but it was not suffered, because whatever the Defendant saith, he saith it in Defence of himself and partially. And Chamberlain Justice said, The Answer of a Defendant is not good Evidence for any purpose but against himself, 2 Rolls Rep. 311. Berisford and Phillips.  
A Voluntary Affidavit made before a Master of the Chancery, cannot be given in Evidence at a Trial, Styles 446.  
Decree or Decretal-Order under the Exchequer-Seal, 
Decree or Decretal-Order.  which recites the Proceed; and if it have Bill and Answer, allowed to be read, 1 Keb. 21. Trowel and Castle.   

PEDIGREE.  
In Ejectione Firm for the Barony of Cockermouth and the Lands, etc. the Lessor shown an Inquisition in tempore R. 2. and finds an Entail 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 Pedigree; which (deriving him from the said Robert) shows 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 Herald's Office; but the Court would not allow this for Evidence, without showing the Books and Record out of which they were deduced. And after an Ancient Book was showed by them, which was allowed for Evidence; Sir Thomas Jones 224. Earl of Thanet's Case.  
Office found, is no concluding Evidence, Sir Tho. Jones 224.   

What Matter may or must be Pleaded, and what Matter may or must be given in Evidence.  
It is a Rule in Law, 
Regula.  in all such Actions wherein one cannot Plead, there the Matter to be Pleaded shall be given in Evidence, and found per Verdict, but where the Party may Plead the same, is to be Pleaded by him. Therefore in Ejectione Firm, Trespass, etc. in Action on the Stat. 5 R. 2. cap. 7. and other personal Actions, 
Collateral Warranty given in Evidence.  a Collateral Warranty cannot be Pleaded in Bar; but he shall have the benefit of it, by giving the same in Evidence to a Jury, and the same is to be found by Verdict of the Jury; so is Seymor's Case, 10 Rep. 97. That Collateral Warranty may be given in Evidence, on Not guilty Pleaded in Ejectione Firm, because in that and other personal Actions, that may not be Pleaded in Bar, 1 Bulstr. 166, 167. Haywood and Smith. 10 Rep. 97. Seymor's Case, 1 Rep. Chudley's Case.  
The Jury may find a Condition to Defeat a Freehold of Land, 
Condition to defeat a Freehold found by Jury.  altho' it be not Pleaded; but of things in Grant, they must also find the Deed of the Condition, 21 Ass. 14.  
The Jury may find Estoppel, which cannot be Pleaded, 
Estopple found by Jury.  and Estoppels which bind the Interest of the Land, as the taing a Lease of a Mans own Land, by Deed indented, and the like, being specially found by the Jury, The Court ought to Judge according to the Special Matter, 2 Rep. 4. Goddard's Case.   

What Evidence the Jury shall have with them after Evidence given.  
The Jury may not carry any other Evidence with them, but what is delivered to them by the Court, and shown 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 departed, the Solicitor 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 shown to them, and after they found for the Plaintiff; yet this shall not avoid the Verdict, because it was no other than what was given to them in Evidence before, Vicars and Farthing's Case.   

What shall be good Evidence to make Title in several Special Case.  
A Verdict for the Lessee is good Evidence for a Reversion in Ejectment, Hardr. 472.  
In Ejectment of a Rectory, 
As to a Rectory the taking of Tithes only no good Evidence of Ejement.  The Evidence was of the taking of Tithes only, and not Entry into the Gleble, and the Plaintiff was Nonsuit; so it was in Perry and Wheeler's Case, 1 Keb. 368. for a Rectory consists of Glebe and Tithes, Latch. 62. Hems and Stroud.  
A Parson in the Ejectment of a Rectory, 
What things a Parson in the Ejectment of a Rectory must prove.  (if he will make out his Title) must prove Admission, Institution and Induction; his reading and subscribing the Articles, etc. and his Declaration in the Church of his full and free assent, and consent to all the things contained in the Common Prayer; and this must be proved to be done within the time limited by the Statute, but he need not to show a Right in him that presented him, 2 Keb. 48. Siderf. 221. Dr. Crawley's Case.  
In Evidence an Institution without Presentation, 
Institution without presentation proved no Evidence.  or Copy of it was refused in Court; albeit, a Presentation may be made by Parol, but proof must be made of it, ibid.  
Admission, Institution and Induction upon the Presentation of a Stranger, is a good matter to bar him, who had Right in an Ejectione Firm, and to put him to his Quare Impedit, Sid. 221. Dr. Crawly's Case.  
In Ejectment. 
Evidence as to an Appropriation.  The Defendant had a Lease of a Prebend made in tempore Hen. 8. and expired; and he now claimed a Lease from a nominal Prebendary thereof, founded in the Cathoedral Church of Lincoln. The Plaintiff claimed under Letters Patents from King James 1. and the Possession was according to this Grant; and it was a Question, if they ought to show 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 Judgement pro Quer. as in the Case of an Impropriation: Hales being Council, 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 intent a Licence, and that the Patent was lost before the Inrolment, and a Verdict accordingly, p. 27. Car. 2. Coterel's Case.  
In Ejectment for a several Fishing. On Not guilty, 
Where constant enjoyment good Evidence.  if the Plaintiff derive a Title as high as the Abbeys, he need not show any Patent, or Derivation from the Crown; but the constant enjoyment is sufficient, unless one be sued by the Crown, 14 Car. 2. B. R. Sir Chr. Guise and adam's.  
In Evidence to a Jury at Bar, The Defendant made Title by the Feoffment of the Lord M. to his Son in Law, the Earl of C. on which there was no Livery nor Inrolment, but both lived together; but the Father was reputed Owner, and paid the Rates, and a year after released and confirmed to his Son and his Heirs; and this Title was opposed, because there was never any inception of an Estate at Will, no entry being proved by the Son after the Deeds made. 
What entry shall be intended and need not be proved  But per Cur. The Feoffment with future Conveyances is sufficient, both living together, the entry shall be intended, and need not be specially proved; whereupon the Plaintiff was Nonsuited, M. 20. Car. 2. B. R. Dunaston and Sir Jerom Whichcoat.  
In Berry and Wheeler's Case in Ejectment, 
Extent of a Rectory on Elegit.  The Council excepted to an Extent, under which the Plaintiff claimed, because after Execution of Fieri facias for part, Elegit was for the whole, without mentioning any thing levied by the former Elegit which recited the Fieri facias, but was returned nihil, sed non allocatur. 2. It was further objected, That it appears, that more than a Moiety is extended: For 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 Churchyard, etc. distinct from other Lands pertaining, and as long as the Extent continues, it cannot thus be denied but there is Glebe, M. 14. Car. 2. B. R. Berry and Wheeler.  
In Ejectment, 
Defendant not to give in Evidence, a former Mortgage made by himself.  The Defendant shall not give in Evidence, a former Mortgage or Conveyance made by himself, and therefore in such Cases, it's left for him that hath the former Mortgage, to get himself made Defendant before the Cause comes to Trial.  
If an ancient Deed of Feoffment be showed, 
Long Possession.  but not Livery upon it, if Possession have gone along with the Deed; this is good Evidence to a Jury to find Livery, 2 Rolls Rep. 132.  
He which affirms the matter in Issue, ought first to make proof to the Jury; and when the Priories were suppressed, a Commission issued, 
Whether par●el of a Priorly Certificate.  and a Certificate upon this, upon all the Possessions, and their values which belonged to the Priories; and therefore it is good Evidence in Issue, whether Land was parcel of the Priory or not, that no mention of it is in the Certificate, Lit. Rep. 36.   

Variance of the Evidence from the Declararation, or what Evidence shall be said to maintain the Issue.  
In Ejectione Firm, if the Plaintiff Declares upon a Lease made by two, 
Lease by two, and one was Lessor for life remainder to the other.  and gives in Evidence, that one of the Lessors was Lessee for Life, the Remainder to the other; this is a material variance from the Declaration, in as much as this is only the Lease of the Tenant for Life, 2 Rolls Abr. 719. England and Long.  
So if a Man Declare a Lease by two, 
Lease by two, where one had nothing in the Land.  where one had nothing in the Land, and so void as to him; yet this is a material variance id. ibid. So if a Man Declare of a Lease made by Baron and Feme, and gives in Evidence a Lease made by the Husband only, this is a material variance.  
So it is, 
By Joint Lease, and they are Tenant in Common.  if a Man Declare of a Joint Lease made by two, and it appeareth upon the Evidence, That the two Lessors were Tenants in Common, and so several Leases, this is a material variance. But otherwise it is, if it appear upon the Evidence, That the two Lessors were Copartners, for this is one Lease being made by them, 
Copartners.  Cr. Jac. 166. Mantler's Case.  
If the Declaration be of a Lease of three Acres, 
The Acres and Lease of a Moiety.  a Lease of a Moiety in Evidence, will not maintain the Declaration, for it is not the same Lease, but in Seabright's Case, B. R. 40 El. and Cooper and Franckling's Case, 14 Jac. Ejectione Firm of 20 Acres, the Jury found him guilty of the Moiety, and Not guilty of the residue, the Plaintiff shall have Judgement against Plowden 224. Brake and Right's Case.  
The Declaration in Ejectment was of a fourth part, of a fifth part, in five parts to be divided; and the Title of the Plaintiff upon the Evidence was but of a third part, of a fourth part, of a fifth part in five parts to be divided, which is but a third part of that which is demanded in the Declaration: And it was said, The Plaintiff cannot have a Verdict, 
Verdict to be taken according to the Title.  because the Verdict in such a Case, aught to agree with the Declaration; but per Cur. the Verdict may be taken according to the Title, and so it was. Qu. how the habere fac ', Possession in such case shall be executed, Sid. p. 229. Ablett and Skinner.  
The Plaintiff Declares of a Lease made the 14 of January, 
Variance as to time.  30 El. Hab. from the Feast of Christmas then last passed for three years, and upon the Evidence the Plaintiff shown a Lease bearing date the 13 of January eodem ann. And it was found by Witnesses, that the Lease was Sealed and Delivered upon the Land the 13th day. Per Cur. Notwithstanding this variance, the Evidence is good enough to maintain this Declaration, for if a Lease was Sealed and Delivered the 13 day, it was then a Lease of the 14 4 Leon. p. 14. Force and Foster.  
The Plaintiff declared in Ejectment of 100 Acres of Land, 
Evidence of fewer Acres then delcared.  and shown his Lease in Evidence of 40 Acres. And it was urged, That he failed of his Lease, for there was no such Lease, as that whereof he did Count But per Cur. it is good, for so much as was contained in his Lease, and for the Residue the Jury may find the Defendant Not guilty, Cr. Eliz. p. 13. Guy and Rand, and yet it is held, 2 Rolls Abr. 72. Brown and Ells.  
If the Plaintiff Declare in Ejectment upon a Lease for years of three Acres, and in Evidence he shows but a Lease of a Moiety, this is a material variance, for it is not the same Lease. 
Ejectment of Meadow and Pasture, and the Evidence is de Herbegio and Pannagio.  Ejectione Firm 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 Joint Lease made by two, 
Joint Lease, by Tenants in Common.  and on Evidence it appears they were Tenants in Common: By three Justices against one it is good, Cr. Jac. 166. Mantle's Case, 83.  
Ejectment was of Lands in Oxenhope, and the Witnesses upon examination did swear there were two Oxenhopes, upper, and nither, without Addition; and upon this the Plaintiff Nonsuited at York Assizes.  
If a Man Declare of a Lease made by Baron and Feme, and gives in Evidence a Lease made by the Baron only; this is a material variance.  
Note, The day of the Filing of the Declaration in the Ejectment, may be given in Evidence, where the Demise is laid the same Term, Vid. Siderf. p. 432. Perdyer's Case.   

Of Demurrer to the Evidence.  
It was held by all the Court upon Evidence to a Jury, 
Demurrer on Evidence.  That if the Plaintiff in Ejectione Firm, 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 join 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 join, 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 join 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 Testimonies to be true he may Demur; but in the Case of the King, the other Party may not Demur upon Evidence shown in Writing, or Record for the King, unless the King's Council will thereunto assent: 
In the King's Case.  But the Court in such Case, shall charge the Jury to find such special matter; but this is by Prerogative, who may waive the Demurrer, or take Issue at his Pleasure, Cro. Eliz. 751. Midlet and Baker, 5 Rept. 104. Baker's Case.  
And in 1 Inst. p. 72. If the Plaintiff in Evidence show 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 join in Demurrer, no more than in Demurrer on a Count, Replicat. etc. and so è Converso, may the Plaintiff Demur in Law on the Evidence of the Defendant; but the King's Council shall not be enforced to join 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 shows the fact, Ploughed. Newis and Scholastica's Case.  
If a Demurrer be upon the Evidence, the Evidence ought to entered 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 Judgement, yet they may exemplify 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 Trial 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 Judgement shall be according to the Verdict, and cannot be stayed, 1 Bulstr. 118. Platt and Sleep.  
Ejectment of seven Messages 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 Messages, and non culp. for the Tenements it seems it had been good. But Hales Chief Baron, refused to allow of such finding in the Home Circuit: And it was said by the Court as this Case is, The Plaintiff may not Aid himself per releasing of part, as perhaps he might, had there been Lands also in the Declaration, 295 Mesme Case.  
But first, 
Council to subscribe the Points in Question. Special Verdict.  I shall set down two or three things observable, as Rules or Directions of the Court, in reference to Special Verdicts.  
It was made a Rule of Court, That in finding of Special Verdicts where the Points are single, and not complicated, and no Special Conclusions; the Council if required, shall subscribe the Points in Question, and agree to amend the omissions or mistakes in the mean Conveyances according to the truth, to bring the Points in Question to Judgement. It was likewise Ordered in rolls time, 
Of finding Deeds in haec ●●erba.  That the unnecessary finding of Deeds, in haec verba upon Special Verdicts, where the Question rests not upon them, but are only derivative of Title, shall be spared and found briefly according to the substance they bear in reference to the Deed, be it Feoffment, Lease, Grant, etc.  
Note, 
Attachment against the Defendant, because he would not bring in his Evidences.  In 2 Rolls Rep. 331. An Attachment was awarded against the Defendants, because they would not bring in their Evidence, for to have a Special Verdict in Ejectione Firm; and this by the course of the Court, because there is no other remedy.   

As to the Rules of Special Verdict.  
Estoppels, 
Estoppels found by the Jury.  which bind the Interest of the Interest of the Land, as the taking of a Mans own Land by Deed indented, and the like being Specially found by the Jury, The Court ought to Judge according to the Special matter; for the Estoppels regularly must be pleeded, and relied upon by apt Conclusion, and the Jury is Sworn ad veritatem dicendam; yet when they find veritatem factis, they pursue well their Oath, and the Court ought to judge according to Law. So may the Jury find a Warranty, being given in Evidence, tho' it be not pleaded, 10 Rep. 97. vide supra tit. Evidence. And if the Jury find the truth, the Court shall adjudge it to be a void Lease, vid. Cr. Eliz. 140. Sutton and Rawlin's Case.  
In Ejectment, 
Priority of Possession where a good Title.  if it appear by the Record of a Special Verdict, that the Plaintiff had Priority of Possession, and no Title be proved for the Defendant, the Plaintiff shall have Judgement, as in Coryton's Case. J. Hiblin was seized 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 seized, 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 though 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, etc. Now forasmuch as in all the Verdict it is not found that the Defendant had the primer Possession, nor that he entered in the Right, or by the Command of any who had Title; but it is found he entered 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, etc. whether the Entry of Hill and his Wife were lawful or not, than the Judgement 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. seized, and devised the Reversion of all Messages (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 Judgement 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, entered, and was seized; but that he, Anno Dom. 1651. did bargain and sell, virtute cujus the Bargainees were seized prout Lex postulat, and then bargained and sold it 1662. Wild and Archer were of Opinion, That the Plaintiff could not have Judgement upon that Verdict, for that they their Bargainees seized prout Lex postulat, but they find the Defendant entered, 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 entered. But Tirrel and Vaughan said, It shall be intended that Patrick entered; for a Verdict that leaves all the Matter at large to the Judgement of the Court, will be taken sometimes by Intendment, 
Intendment.  as well as where the Jury conclude upon a Special Point, Car. Jac. 64. The Jury find an Incumbent resigned, it shall be intended the Resignation was accepted. So Hob. 262. And where they find the Bargainees seized, 
Prout Lex postulat.  prout Lex postulat, that doth not leave it doubtful, whether seized or not seized; but whether by Right or by Wrong, 
If the Defendant hath primer Possession first, he shall not have Judgement if no other Title be found for him  for Seism must betaken as found expressly, neither do they find any other in Possession; yet however if the Defendant had primer Possession, he shall not have Judgement, if no other Title be found for him, as in Cr. Car. 57 Hern and Allen The Husband makes a Feoffment in Fee with Warranty, and takes back an Estate to him and his Wife for their Lives, etc. 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 Firm 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 merely 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 plaintiff 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 Firm was brought upon a Lease made by Rouen of the Rectory of, etc. 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 Rouen, who was inducted; and after Morgan was inducted, and after Rouen 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 Rouen the Presentee of the King is inducted; and after Morgan is inducted; and after Rouen enters, and Glover enters upon him: The Question was, Who had better Possession Rouen or Glover? Per tot' Cur' Rouen 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 Rouen 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 Rouen 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. seized it, and granted it by Copy to the Lessor of the Plaintiff for his Life, and after licenced him to let Tenements infra script' in quibus, etc. for five years, if J. the Lessor of the Plaintiff so long lived; that he let to the Plaintiff for three years, who entered, and the Defendant ousted him. Et si super totam, etc. 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 entered 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 Judgement 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. seized in Fee, and devised that P. and J. G. should be trusties, and take the Profits till the full Age of H. G. whom he makes his Heir. W. G. doth authorize his Feoffees to sell so much of his Lands for payment of Debts and Funeral Charges as in their discretions shall seem meet. The Feoffees for 80 l. Lease for 99 years to begin after the Death of R. G. and his Wife, to three, one whereof is Lessor of the Plaintiff; it was found at the time of the Sale, that all the Debts were paid. Per Cur ', the Fee being given away from the Heir of the Devisor, Priority of Title is a sufficient possession, 
Priority a sufficient Title.  unless some Title be found for the Defendant; and primer Possession is good where neither Party hath Title; and in this Case the Lease was adjudged void, the trusties not being enabled to sell farther than to satisfy Debts.  
In Wallis' Case, 
Where primer Possession makes a Disseisin.  Stiles Rep. 291. Special Verdict was on a Copyhold-custom, the primer Possession will make a Disseisin, if the Custom be not well found; it was not found in that Case that the Land was demisable according to the Will of the Lord, and so it may be Free-Land, and the Custom did not extend to it; nor is it found that the Parties to whom the Lettor of Attorney— was made to surrender, were customary Tenants, and then the primer Possession by the Defendant will make a Disseisin, and Judgement pro Quer '.  
In Ejectment prior Possession is a good Title against the King's Presentation, 
In Ejectment prior Possession a good Title against the King's Presentation, not so in a Quare Impedit.  but not so in a Quare Impedit; for there the Incumbent ought (altho' Defendant) to make a Title against the King's Presentation without Title, as is the Book 7 H. 4. 31. but if the Incumbent be in by Entry of his own Head, without Presentation, it is not sufficient in either, 1 Keb. 503. Brown and Spencer.  
3. 
Si constare poterit that it is the same Land, it is good.  The Special Verdict is good, si constare poterit, that it is the same place and the same Land in the Declaration mentioned, although it be not found expressly; and although the Jury find not that it is the same Land in the Declaration mentioned, yet if they find the Entry and Ejectment according to the Declaration, it is sufficient; and therefore the Mistake of a Letter, or Addition of a Word shall not hurt the Verdict, si constare poterit, etc. Siderf. p. 27. Hoare and Dix.  
4. 
The Special Conclusion of a Special Verdict, shall aid the Imperfections of it.  In many Cases the special Conclusion of a Special Verdict shall aid the Imperfections of it. If the Jury find a Special Verdict, and refer the Law upon that special Matter to the Court, although they do not find any Title for the Defendant, which is a collateral thing to the Point which they refer to the Court, yet the Verdict is good enough; for all other things shall be intended, except this which is referred to the Court. As in Ejectment, if the Plaintiff declare upon a Lease made by A. and the Jury find a Special Verdict and matter in Law upon a Power of Revocation of Uses by an Indenture and Limitation of new Uses, and then a Lease for years made to the Plaintiff by the Lessor in the Declaration, and another in which there is a perfect Variance; but they conclude the Verdict, and refer to the Court, whether a Grant of a new Estate found in the Verdict, be a Revocation of the first Indenture, or not. The special Conclusion shall aid the Verdict, so that the Court cannot take notice of the variance between the Lease in the Declaration and the Verdict, because the doubt touching, the Revocation is only referred to the Court. And although they refer to the Court, whether this be a Revocation of the first Indenture, and not of the former Uses or Limitation of new Uses, as it ought to be, yet in a Verdict this is good; for their intention appears. 
Intent.  But where the Jury find specially, and furthermore conclude against Law, 
Where the Verdict is good, and the Conclusion ill. Diversity between a geneneral Conclusion and a special Conclusion.  the Verdict is good, and the Conclusion is ill; and the Court will give Judgement upon the special Matter without having regard to the Conclusion of the Jury, 5. Rep. 97. Litt. Rep. 135. 2 Keb. 362, 412. 11 Rep. 10. Moor 105, 269. So note this Diversity between a special Conclusion of the Jury, and Reference to the Court, and a general Conclusion and Reference to the Court. 
A Special Verdict may make the Declaration good.  A precise Verdict may make the Declaration good, which otherwise would be ill, as the Declaration is of Lands in Sutton Coefeild; and the Verdict finds the Lands in Sutton Colefeild, and the Deed is of Lands in parva Sutton infra Dominium de Sutton Colefeild; so neither the Verdict nor Deed agree with the Declaration for the Vill where the Lands lie; therefore no Judgement 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 expressly that the Bishop, dedit Tenementa infra Script. Cr. Jac. 175. Ward and Walthow, Yelv. p. 101. Mesme Case.  
5. The Judges are not bound by the conclusion of the Jury, as in Ejectment on a void the Jury find Lease, 
Lease.  that if the Entry of the Daughter was not congeable, the Defendant is Guilty: Now the Judges are not bound by the conclusion of the Jury, but may Judge according to Law, as 10 Ed. 4. f. 70. Trespass was brought against the Lord for Distraining. The Jury found for the Plaintiff. But because the Statute of Marlbudge, is non ideo puniatur Dominus, etc. The Court shall adjudge for the Defendant. So is the Rule in Ploughed. 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 itself; Moor p. 105. Lane and Cooper.  
And yet the Court is sometimes bound by the conclusion of the Jury; as in Ejectione Firm 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 etc. The Plaintiff cannot have Judgement upon this for a Moiety, if the Court shall not adjudge him Guilty of the whole for the Special conclusion cited, 1 Rolls Rep. 429.  
1. 
Verdict to be taken according to Intent.  Special Verdict shall be taken according to Intent, and the Court must make no more doubts than the Jury does; the finding matter of Fact being only the Jurors Office, as 5 Rep. Goodales' Case, The doubt was, whether the payment of 100 l. with agreement to have some part of it back again, were sufficient upon a Condition to defeat the Estate of a Stranger: The Court regarded not, that there was no Title found for the Party that made the Entry, whereupon the Action was brought. Ejectione Firm was brought by G. against W. upon Not guilty, the Jury concluded their doubt upon performance of a Condition, 
When the Verdict concludes specially on one point, the Court shall doubt of no more than the Jury doubts, securs where it concludes it the General. General conclusion depends upon all the Points of the Verdict.  by Payment of Money by Sir J. P. to one W. but yet, in making up their Verdict, they had given the Possession to the Plaintiff by Lease, and laid the Entry upon him by W. without any Title under Sir J. P. but that was included and so not regarded, Hen. 55. 262.  
But if the Jury conclude upon the General, whether the Defendants Entry were lawful or not, which is all one, as if they had referred 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. Perk and Channel.  
It shall be intended, that the Reversion continues in the Party, as if a Special Verdict find that A. was possessed for years of Land, and that the Reversion in Fee was in B. 
Reversion shall be intended to continue.  and that A. Devise the Term to C. after the Death of M. whom he makes his Executor, and dies, and M. enter, and during his Life C. after releaseth his possibility to B. and it is not found, that the Reversion continued in B. at the time of the Release; yet it shall be intended to continue in him in a Verdict, it being found to be once in him by the same Verdict before, p. 13 Car. 1. B. R. Johnson and Trumpet.  
A Life shall be intended to be in being tho' not found, 
Where a Life shall be intended to be in being.  as was Fretzvil and Mollineuxes Case. If the Jury find the Title of the Plaintiff to be under one, who was Lessee for Life, and they find the Estate for Life, but do not find the Tenant for Life is alive; The Life shall be intended and supplied, the conclusion and reference to the Court being upon other matter. Special Vedict in Ejectment found, that J. J. was deprived by the high Commissioners of a Benefice, and it is found in this manner, That such persons authorizati virtue Literar' Patent' Eliz. Reg. 
Jury find virtute Literar ' do not find they were under Seal.  and it is not found, that the Letters Patents were under the great Seal; yet this is good, and shall be intended in a Verdict, Tr. 13 Car. 1. B. R. Allen and Nash.  
In Ejectment, The Verdict was on a Proviso of Revocation of uses, That it should be lawful for the Covenantor, being in perfect health and memory, under his Hand and Seal, and by him delivered in the presence of three credible Witnesses, etc. 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 showed, 
What shall be presumed unless the contrary be showed.  and so for the presence of credible and sufficient Persons. Otherwise, if it were in the presence of sufficient subsidy Men, Hob. 312. Kibbet and Lee.  
If the Jury find that J. S. was seized 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 seized in Fee, 
Devise.  and made his Will in haec verba, and that he afterwards died; altho' they do not find he died seized, yet it shall be intended, he died seized, and so good. But  
If the Jury find the Words of the Will, and yet do not find the will, the Verdict is not good  
And if the Jury find a Bargain and Sale, and a Fine, 
Bargain and Sale.  and do not mention Inrolment or Proclamations, it shall not be intended, Hob. 262.  
In Ejectione Firm, the Verdict finds that E. D. the Lessor, and Conisor was seized 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, 
Extent.  that this Land was delivered in Extent, and then the Defendant had no Title. 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' Case, p. 1653. B. C. The Jury find that after a Fine levied, and before the Ejectment, the interest of M. C. F. B. and K. B. of the Lands in Question, came to the Lessor of the Plaintiff, 
That the Interest of the Lands came to the Lessor, but shows not how.  but shows not how. But per Cur. it is good enough, for when the Jury finds the interest comes to the Lessor, the Court intends all Circumstances, that shall conduce to that fact; for the Court doubts not when the Jury doubts not, 4 Rep. 65. Fullwood's Case.  
The Jury find that J. C. came before the Recorder of London, 
Statute.  and Mayor of the Staple, and acknowledged himself to T. R. in 200 l. Exception was taken, that there was no finding of any Statute there; for it was found, that this was secundum formam Statuti, and that it was by Writing. But per Cur. its good enough, for all Circumstances shall be intended Raym. 150.  
And there is another Rule in our Books persuant to this last, 
In a Special Verdict all necessary circumstances shall be intended.  in a Special Verdict the Circumstances shall be intended, or in a Special Verdict, the Circumstances of every thing need not to be so strictly found as in pleading. As in Ejectment, the Jury found he delivered the Lease upon the Land, but found not, that he had entered and claimed, Cr. Eliz. 167. Willis and Jermin. And in Goodall's Case, 5 Rep. it was resolved, That all matters in a Special Verdict shall be intended and supplied, but only that which the Jury refer to the Consideration of the Court.  
Also in Molineuxes Case, Cr. Jac. 146. It was excepted to a Special Verdict, That the Life of B. who was Tenant for Life, 
A Life  and the Lessor in the Action was not found: But per Cur. it shall not be intended that she is dead, unless it been found. And in a Special Verdict, all necessary Circumstances shall be intended, unless found to the contrary: 
Some things shall not be intended.  But some things the Court shall not intent, as in Sadler and Draper's Case, Sir Thomas Jones, p. 17. where the Case was whether the next of the Blood being of the half Blood (i. e. whether the Brother of the half Blood of the Mother of an Infant, shall be Guardian in Socage of Land, by descent 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 Guardian in Socage, was proximus in sangine à quel, etc. that the Court shall not intent 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, etc. but they do not find the Heir had not paid the Money. 
Difference between the Condition and Limitation of an Estate, as to the finding by the Jury.  This quousque the Heir pay the Money, is parcel of the Limitation of the Estate which ought to have been found: Otherwise, the Court who is to Judge upon the whole matter, shall not intent it, Tr. 19 Jac. B. R. Langley and Pain. But if in a Special Verdict, the Jury find J. S. was seized 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 seized in Fee of Land, and possessed 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, etc. his Debts being paid, and his Funeral expenses 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, etc. which is a Condition precedent so as the Executors cannot have it till the Debts paid, and venire de novo granted, Hill. 10 Car. 1. B. R. Wilkinson's Case, Vide 2 Leon. 152. Allen and Hill's Case, Condition must be punctually found.  
To this purpose it is laid down often in our Books as a Rule. 
Finding the substance of the Issue is sufficient.  That if the Jury find the substance of the Issue it is sufficient, as in Ejectment of a Manor: If the Jury find there were no Freeholders, and so it is no Manor in Law; yet it being a Manor in Reputation, and so the Tenants pass by the Leases, therefore this Verdict is found for him who Pleads the Lease of the Manor, for the substance is whether Bargain and Sale, de modo irrotulat ' and not said in six Months, its good in a Verdict but not in a Plea, 3 Keb. 180. vide supra Corbet and Stones' Case.  
If in Ejectment a Lease is pleaded of a Manor, etc. and the Issue is quod non dimisi● manerium, and the Jury give a Special Verdict, That there were not any Freeholders but divers 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 alleged in pleading to be a Manor, 
Manor in reputation, and not in strict Law.  which pleading is made by learned Men, and tho' this was in an Action adversary and not amicable; yet, for as much as the Issue is triable by the Lay-gents, and in truth the Tenements in which, etc. pass by the Lease; the Verdict is found for him that Pleads the Lease of the Manor, for the substance of the Issue is, whether it were demised or not, Vines and Durham's Case cited, 6 Rep. 77. in Sir Moyle Fincheb's Case.  
8. 
What one cannot plead shall be found by Verdict.  It is a Rule in Law, in such Actions in which one cannot Plead, there the matter to be pleaded shall be found by Verdict, and this well; but where the Party may Plead there the same is to be pleaded by him, 1 Bulstr. 166.  
The Jury may find a Warranty being give in Evidence, for in Ejectment from Trespass, and in Act on the Statute 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 Vourcher 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 lie.  
10. 
Verdict by presumption.  The Jury may give a Verdict by presumption, as to find Livery in respect of long Possession; but if they find the matter Specially, the Court will not adjudge this a Livery, 1 Rolls Rep. 132.  
11. A Verdict that finds part of the Issue, and nothing for the residue is sufficient, Vide postea.  
12. Fraud ought not to be presumed, unless it be expressly found, 2 Rep. 25. 10 Rep. 56. Cr. Car. 549. Crisp and Prat.   

Where and in what Cases Entry must be expressly found or not, and of the force of the words prout lex postulat.  
In Horewood and Holman's Case, 2 Bulst. 29. Lands are given to the use of a Man and his Wife, the Remainder to the Heirs of the Body of the Husband; the Husband makes a Feoffment in Fee with Warranty, and takes back an Estate to him and his Wife for their Lives, the Remainder over to make a Remitter to the Wife, there ought to be an Entry, 
To make a Remitter, there must be a new Entry. Prout lex pestulat.  and no new Entry is found by the Special Verdict to be by the Husband, but only prout lex postulat. The Court advised a new Trial, and to amend the Special Verdict, and to find the Entry of the Baron and Feme.  
The time of the Entry of the Plaintiff is sometimes material, as in Fort and Berkley's Case. 
The time of the Entry of the Plaintiffs Lessor.  Per Cur. In that Case which way soever the Law had been taken, Judgement 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 entered before the Term began, he was a Disseisor as it was, Dier 89. Clifford's Case. But it's said he was possessed prout lex postulat, 
Prout lex postulat.  as so he was of the Reversion too, it does not appear but that he was a Disseisor and so continued, Carters Rep. 159, 160.  
If the Title appear to be in a Stranger, they must find an Ouster made to him who had the Right. 
Where actual Ouster must be ●ound.  And therefore in Ejectione Firm, If the Jury find a Special Verdict, being matter in Law upon a Lease for years, reserving Rend upon Condition, etc. 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 possessed prout lex postulat, until the Defendant entered 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 Firm, the Jury find a Special Verdict, and find Special Matter in Law, whether J. S. had right to the Land, upon which the Court adjudged, That he has right to the Land. But they find farther, 
Ouster Dissesin.  That J. D Entered into the Land upon J. S. and was thereof seized prout lex postulat, and made the Lease to the Plaintiff, and the Lessee was by force of this possessed, and it is not found that J. D. disseised J. S. and for that, upon this Verdict shall not be intended that J. D. oustred J. S. and disseised him, and then the Entry of J. D. and his Lease is void, and so an Action does not lie against a Stranger, who had nothing in the Land, as was Hitchin and Glover's Case.  
In Ejectione Firm, by the Lessee of a College, if the Jury find a Special Verdict in this manner, (viz.) That the College let this to A. upon Condition, and found a Special Matter in Law, whether the Condition be broken, and that the College supposing the Condition broken by their Bailiff entered, 
Entry by a College how to be found.  and let this to the Plaintiff, this is not a good Special Verdict, without finding of a command given by the College to the Bailiff to Enter, to be by Deed, for otherwise it is not good, 2 Rolls Abr. p. 700. Dumper and Simms.  
A. was seized 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 entered and were possessed prout lex postulat, 
Prout lex postulat, how far extend.  and being so possessed granted to the Plaintiff, who entered and was possessed till the Ejectment. This is uncertain, because it is not found that the Heir had paid the Money, 
Super totam materiam.  for they say super totam materiam, and to say prout lex postulat, is not an affirmation of any certain Possession, Palmer 192. Langly and Paine.   

Of the Juries finding by Parcels.  
It is a Rule: 
Verdict that finds part of Issue, and no-nothing for the residue is insufficient.  A Verdict that finds part of the Issue, and nothing for the residue is insufficient. As in Pemble and Sterne's Case, Raym. 165. The Demise is laid of a Park Message 300 Acres of Land, and the Verdict finds only as to parcel, and nothing of the residue for the Plaintiff or the Defendant; the Verdict is void; so is the Rule, 1 Inst. p. 227. A Verdict that finds part of the Issue, and finding nothing of the residue it is insufficient for the whole, because they have not tried the whole Issue wherewith they are charged, Car. Jac. 113. Ejectione Firm of a Lease of Messages, 3000— Acres of Land, 3000 Acres of Pasture in D. per nomina of Monkhal. and 5 Closes per nomina. On Not guilty the Jury gave a Special Verdict, (viz) quoad 4 Closes of Pasture containing by Estimation, 2000 Acres of Pasture, that the Defendant was Not guilty, 
Quoad resid.  quoad resid. they find the matter in Law; this Verdict is imperfect in all, for when the Jury find that the Defendant was Not guilty of 4 Closes of Pasture containing by Estimation, 2000 Acres of Pasture it is not certain, and it doth not appear of how much they acquit him, and then when they find quoad residuum for the Special matter, it is uncertain what that residue is; a Venire fac' de novo was awarded, 
A Verdict of more than declared for.  Woolmer and Caston's Case. But if the Verdict be of more than declared for, it shall be void for the residue. As Ejectment for him who pleaded all of 14 Acres, and the Jury find Guilty of 20 Acres, 14 Acres, The Plaintiff shall have Judgement for the and the Verdict shall be void for the residue, 2 Rolls Abr. 707. 719. Seabright's Case.  
In Ejectment of a Manor, and so many Acres as includes the Manor; the Jury find for the Plaintiff as to the Manor, praeter the Services; and as to the Services Not guilty. And Judgement pro Quer. Here are 2 manifest Errors. 1. When the Court is of a Manor, the Jury cannot find for the Plaintiff, for that which is not a Manor; and there is none that brings Ejectment of a Manor, 
Ejectment of a Manor, how to be brought.  but they also add the Acres that contain it, to the end, that if they prove it not a Manor they may recover according to the Acres, but they must enter it so, but not as here generally of both. 2. The Verdict being as much as the Count, the Judgement against the Plaintiff cannot be in Misericordia, if it be supposed good. The Court held them to be manifest Errors and assignable by the Defendant, Hob. 108. Latch 61. Cr. Jac. 113. 1 Keb. 110. Hammond and Conisby. But I conceive that is not Law, for in Hammond and Conisby's Case, Ejectione Firm was of a Manor; upon Not guilty, there was a Verdict pro Quer. for the Manor, and quoad the Services Not guilty. Error was assigned, because the Verdict is not for the Plaintiff, for the Manor, because as to the Services it is for the Defendant. 
Surpluse in a Verdict.  But per Cur. The last part of the Verdict shall be taken general for the Plaintiff, Sid. 232. Ejectione Firm of a Message. On Not guilty, the Jury find the Defendant guilty of 2 parts of the House: It was alleged in Arrest of Judgement, That the Verdict has not found the Defendant Guilty according to the Count, which is of a Message an entire thing. Manwood contra: Omne majus continet in se minus; but if the Declaration had been of 2 parts of a Message, and on Not guilty, the Jury had found him Guilty of the entire House, The Plaintiff shall not have Judgement, Savill 27.  
In Ejectione Firm of a Message, if it be found that a little part of the House is Built by encroachment upon the Land of the Plaintiff, and not the Residue; yet the Plaintiff shall recover for this parcel by the name of an House.  
It's laid down positive in Ablett and Skinner's Case in Sid. 
The Verdict may be of fewer parts than the Declaration.  p. 229. that the Verdict may be of fewer parts than in the Declaration: As on Trial at Bar in Ejectment the Declaration was of a fourth part of a fifth part in five parts to be divided, and the Title of the Plaintiff upon the Evidence was but of a third part of a fourth part of a fifth part in five parts to be divided, which is but a third part of what is demanded in the Declaration. It was said the Plaintiff cannot have a Verdict, because the Verdict in such Case ought to agree with the Declaration; but per Cur' the Verdict may be taken according to Title; and so it was. But Qu. how the Habere fac ' shall be executed.  
If the Verdict in Ejectment contain more than the Declaration, 
If the Verdict contain more than the Declaration, the Plaintiff may release his Damages.  the Plaintiff may release the Damages. Q. if he may release part of the Land, Sid. p. 412.  
Ejectione Firm of the Manor of Dale; on Non Culp ' pleaded, the Jury find, quoad unum Messuagium parcel ' 
As to a Manor.  Manerij predict ', guilty; quoad resid Not guilty. It is moved he cannot have Judgement; the Action is brought of the Manor, and the Jury find him guilty of one House only, so he cannot have his Judgement 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 Tithes without the Glebe; and he could not have Judgement, the Glebe being the Principal. So Ejectione Firm of a Manor, and proves only the Rents, he shall not have Judgement. Ejectment was of an House, the Special Verdict was, That the Plaintiff was seized in Fee; and if there be several things laid in Ejectione Firm, 
If several things are laid in Ejectione Firm, and the Jury find the Defendant guilty in one, the Plaintiff shall have Judgement of that.  as House, Garden, etc. and the Jury find guilty of one only, the Plaintiff shall have Judgement of this. In Delabar's Case it was not found that the Tithes were parcel of the Rectory, and so it differs from this Case. In Ejectione Firm 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 Assize. Adjornatur.  
The Jury find the Defendant guilty of one Moiety, and for the other Moiety a Special Verdict, this is no Error; for the Jury may conclude upon the Moiety, 
Where the Jury may conclude upon a Moiety or not.  for it may be he entered into one Moiety, and not into the other; but if he declares upon the whole, they cannot find him guilty of a Moiety, 3 Bulstr. 229. Milward and Watts. But if one declares in Ejectione Firm 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 seized or possessed, 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 Tithes in H. but they did not find the Testator died seized of the Tithes, 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 seized, Stiles Rep. 279. Saunders and Rich.  
In Ejectione Firm if the Jury find a Special Verdict, That J. S. was seized of the Manor of D. in his Demesne as of Fee, of which Manor of Copyholder in the place where, etc. 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, etc. for the said Forfeiture, and was of this seized in his Demesne, as of Fee, and concludes, si super totam materiam, etc. this is not a good Verdict, because it is not found that J. S. died seized of the Manor, and that this descended 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 seized thereof without finding of it, P. 1 Car. 1. Cornwallis and Hammond.   

Of Uncertainty in Special Verdicts.  


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

As to Persons.  
One deviseth all his Lands to E. his Wife for Life, the Remainder to F. his Daughter in Tail, the Remainder to the eldest Son of William his Brother in Tail, Remainder over. E. enters, F. dies without Issue; they find Gertrude Cousin and Heir to F. who levied a Fine, but they find not Gertrude was Heir to the Devisor; 
Do not find Heir.  and it may be althô F. was the Daughter, the Devisor might have a Son, or that she was Heir to him by a second Wife, yet that Exception seemed not valid, Cr. El. 642. Hemsley and Price. So in 3 Rep. Sir George Brown's Case, Anthony is found Son but not Heir, and yet without his being Heir, the Plaintiff had no Title: And yet in Cymbal and Sand's Case, Cro. Car. 391. Gimlet and Sands, the Court seemed to be of Opinion, That tho' the Jury found that Humphrey 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 Venture, or there might be an Attainder, or the Warranty might be discharged or released io his Life-time, 2 Rolls Abr. 701. mesme Case.  
The Jury found a Special Verdict on a Will, in which they found A. had Issue two Sons B. and C. and do not find which of them was the elder, and which the younger, which is material in the Case. This Verdict is not good; for tho' B. is first named, yet it doth not appear by this that he is the eldest Son, M. 20 Jac. B. R. Peryn and Pearse.   

Uncertainty as to part of a House.  
The Defendant pleads Not guilty; 
Part of an House.  the Jury find him not guilty for part, and guilty de tanto unius Messuagij in occupatione, etc. quantum stat super Ripam. Per Cur ' the Verdict is insufficient for the Uncertainty; for tho' the Certainty may appear to the Jury, yet that is not enough; the Court ought to give Judgement, & oportet quod res deducatur in judicium. 
The Court must be informed of the Certainty, and it ought to appear to them.  Had they found him guilty of a Room, it had been good. So if he had been found guilty of a third part, for of them the Law takes notice. And an Ejectione Firm was brought for the Gatehouse at Westminster, and the Jury found the Defendant guilty for so much as is between such a Room and such a Room, and it was adjudged good, 
Guilty of a Room is good.  Marsh. Rep. 47. Juxon and Andrews.   

As to Certainty of Acres.  
Ejectione Firm was brought of 400 Acres of Land; 
As to Acres.  and the Jury find the Defendant quoad all besides three Acres parcel tenementorum praedictorum Not guilty; 
Quoad, etc.  and quoad the three Acres, they find special matter; and that G. A. the Lessor let the aforesaid three Acres to the Plaintiff, and that he was possessed; and that the Defendant ejected him out of the three Acres, 
Parcel.  parcel' tenementorum praedictorum, and they did not find the Ejectment of the aforesaid three Acres, etc. 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 Judgement; and so if they had found but one Foot of the Acre. And it sufficeth to be found in one Moiety of the Acre bounded in this Action, where Damages are only to be recovered. But if it were in Ejectment the Verdict had been ill; 
It must be certain in what part the Plaintiff must have his Hab. fac. possess. aliter in Trespass.  for it is not certain in what part the Plaintiff shall have his Habere fac' possessionem, Yelv. p. 114. Winckworth and Man.  
In Ejectione Firm the Plaintiff declares of a Message, 3000 Acres of Land, 3000 Acres of Pasture in D. per nomina of the Manor of Monkall, and 5 Closes per nomina, etc. The Jury give a Special Verdict, quoad four Closes of Pasture containing by Estimation 2000 Acres of Pasture, that the Defendant was not guilty; quoad residuum they find the Matter in Law. This Verdict is imperfect in all; for when the Jury found the Defendant was not guilty of four Closes of Pasture containing by Estimation 2000 Acres of Pasture, 
Quoad residuum must be certain.  it is uncertain, and doth not appear of how much they acquit him; and then when they find quoad residuum for the special Matter, it is uncertain what that Residue is; so there cannot be any Judgement given. And a Venire fac' de novo was awarded, Cro. Jac' 114. Woolmer and Caston.  
In Ejectione Firm de septem Messuagiit sive tenementis, 
De Messuagiis sive Tenementis is ill, and the Verdict helps it not.  and Verdict pro Quer ', its ill for the Uncertainty, and the Verdict doth not help it. And Hales refused to let the Jury find for the Plaintiff for the Messages, and Non culp ' for the Tenements. But per Twisden had it been de uno Messuagio sive Tenemento vocat' The Black Swan, it had been good, because the last part makes it certain, Sid. 195. 2 Keb. 80. Cro. El. 186.  
On Special Verdict in Ejectment the Case was, 
As to Acres and Parishes.  the Declaration was of several Messages in the several Parishes of St. Michael, St. James, St. Peter and St. Paul, and that part of the Premises lie in the Parish of St. Peter and St. Paul, and that there is no Parish called the Parish of St. Peter, nor none called the Parish of St. Paul. Per Cur' the Copulative (Et) shall be referred to that which is real and hath existence, ut res magis valeat; not to make St. Peter's one Parish and St. Paul another, but to make them both one Parish, and the Words, several Parishes, are supplied by the Parishes before mentioned, as 6 Ed. 3. Praecipe of 10 Acres in A. B. and C. there the Lands must lie in every one of the Vills; but if the Praecipe were de Manerio & de decem Acris in A. B. and C. there it would be well enough, tho' the Manor lay elsewhere, provided that ten Acres lay within the Vills' aforesaid, for then the last words are satisfied by the ten Acres, Hardr. 1. 330. Ingleton and Wakeman.  
Yet in Thomas and Kenn's Case, P. 38 El. B. R. it's said in Dyer ult. Edit. in margin 34. b. Ejectione Firm 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 shows not them in Certain, and adjudged a good Verdict, and the Plaintiff had Judgement.  
It's a Rule laid down, 
Where ever but one Acre 〈◊〉 found certain, ●ne may release ●ll the rest.  1 Rolls 784. Rhetoric and Chappel's Case, wherever 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 Firm of 30 Acres of Land in D. and S. The Defendant was found Guilty of 10 Acres, and quoad residuum Not Guilty. 
Acres in two Vills, and the Jury found the Defendant Guilty, and say not how many lie in one Vill, and how many in another.  And it was moved in Arrest of Judgement, That it was uncertain in which of the Vills those Lands lay; and therefore no Judgement can be given: Sed non Allocat. and adjudged pro Quer. For the Sheriff shall take his Information from the party, for what 10 Acres the Verdict was. So is Siderf. 75. If one Dcclares for a 100 Acres of Land in two Vills, and the Jury find the Defendant Guilty, this is good without saying how many Acres lie in the Vill, and how many in the other: And the Sheriff ought to take notice of this at his Peril, in making of Execution. And so in Dence, and Dence his Case: It shall be intended, that every Acre of Land named in the Declaration lies in both Vills, for so much is presumed by the Declaration, and the Venire from both Vills, Cro. Car. 467. Portman and Morgan, Sid. p. 75. Yelv. 228. Dences' Case.  
Trin. 43. El. Meredith and Brown. It was adjudged in B. R. that in Ejectione Firm, 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 Disseise 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 Grace. The Ejectment was supposed the first of May; and the Jury found the Ejectment to be circa the first of May. It was held not good, Godb. 125. cited in Yarran and Bradshaw's Case.    

Of a Verdict in other Leases, or Date than is declared upon.  
The Plaintiff Declares of a Lease by two Copyhold-Lords, 
Jury find on a Demise generally.  Lessors of the Plaintiff for a Term certain; and the Jury find a Demise generally, and do not find the Lease whereupon the Plaintiff Declares, and it may be any other Lease which might not be determined at the time of the Verdict, but is now since; and the Ejectment is only found out of this, 
Count of a Lease for years in Possession, the Jury sound the Lease made on another Day, it's against the Plaintiff. Aliter, if it be made to commence at a Day to come.  and not on the Lease declared on, 19 Car. 2. B. C. Lenthal and Thomas.  
In Ejectment, if the Plaintiff Declares of a Lease for years made the first of May, to commence at the first of St. Michael, than 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 Firm, 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' 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 than last passed 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 beat Marie Virgins 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 passed, 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 passed, for 21 years' next ensuing the Date hereof fully to be complete and ended. And upon the Verdict the Plaintiff had Judgement, which was affirmed in Scaccario. The Term began from the Feast of the Annunciation, in Computation of the 21 years, and on the 5 of May, in point of Interest, Allen p. 77.  
In Pope and Skinner's Case, 
The Plaintiff must make his Title truly.  The Plaintiff Declares of a Lease made to him the 30 Day of March, 11 Jac. Habend. from the Feast of the Annunciation next before for a year. The Defendant Traverseth the Lease modo & forma. The Jury find a Lease to the Plaintiff on the 25 Day of March for one year, from thence next ensuing: This is against the Plaintiff, for being in Ejectione Firm, 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 gins the Day it was Sealed, the other the Day after. 
Habend. hence forth.  But per Cur. They are both one, being a computation of time from the time past; and both shall be pleaded to begin from the Day of the Date, when the Lease is afterwards Sealed at another Day; and if the Lease be made the 1 of December, Hab. henceforth, the Ejectment may be alleged the same Day. Aliter, If it be à die datus. Pro Quer. Cr. Jac. 258. Lewellin versus Williams.  
Verdict finds, 
The Averment of the Estate Tail to be found.  that the Lessor of the Plaintiff was seized in Tail of the Rectory, etc. and does not show the beginning of the Estate Tail, which is the particular Estate. Per Cur. It is an apparent fault, Cr. Eliz. 407. Baker and Searle.  
In the said Case where the Party comes in by a Limitation of an Use, 
Where when the party comes in by Limitation of Use▪ it must say, vigore stat.  the Verdict saith, virtute cujus dimissionis, and it ought to have been & virtute Statut. Per Cur. This is an apparent fault in Substance and Form.  
The Issue in Ejectment was, if Julian the Wife of the Defendant was alive at such a time; 
Diversity of names.  and the Jury found, that Jenimet the Wife of the Defendant was alive at such a time. Per Cur. They shall not be adjudged one and the same Person, without finding also by the Custom of the Country, that Women baptised by the name of Julian, have beenalso called Jenimet, Moor 411. No. 560. Huntbach and Shepard.   

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

Where, and in what Cafes Special Verdicts may be amended.  
Where a Special Verdict is not entered according to the Notes, 
Record of a Special Verdict amended.  the Record may be amended, and made agree with the Notes at any time, tho' it be 3 or 4 Terms after it is entered, 4 Rep. 52. 8 Rep. 162. Cr. Car. 145.  
And where a Verdict is certainly given at the Trial, and uncertainly returned by the Clerk of the Assizes, 
Postea where amended.  etc. the postea may be amended, upon the Judges certifying the truth, how the Verdict was given, Cr. Car. 338.  
The Plaintiff was Nonsuited at the Assizes, 
Nonsuit ●o● default of Warrant to try the Cause not Recorded.  for default of the Warrant of the Justices to try the Cause, (viz.) for not confessing Lease Entry and Ouster, and prayed that the Nonsuit might not be Recorded, which the Court granted, and an Alias Distringas, 1 Keb. 508. Pits and Viner, Cro. Car. 203. Aquila Wicke's Case.  
If the Plaintiff makes Title upon a Demise made by Tho. Bill and Agnes his Wife, and the Parties are at Issue, and the Record of Nisi prius was entered by the Clerk, that the said Tho. Bill, and Anne his Wife made the Demise, 
Record of Nisi prius, variance from the Roll not amendable.  etc. so that the Record of Nisi prius differs from the Roll; this shall not be amended, for if the Record should be amended, the Jury should be attaint, in as much as they found a Lease made by Tho. Bill and Agnes his Wife; and peradventure this Lease will not prove a Lease, by Tho. Bill and Anne his Wife, 1 Rolls Abr. 202. King and King.    

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 Judgement, 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, 
Regular.  the Defendant shall have Costs. The Plaintiff may relinquish his Damages, where part of the Action fails, and take Judgement for the other. 
Release of Damages.  And so is the Rule, If part of the things Demanded in this Action are well demanded, and part of the things demanded are not well demanded, and Verdict is given for the Plaintiff for the whole, and entire Damages are given, The Plaintiff may release all the Damages in that which is not demanded, and pray Judgement for the Residue; and this shall aid Error if Judgement be given accordingly. As in Ejectione Firm of a Message, Cottage and Tenement, if it be found for the Plaintiff, and entire Damages given for the whole, because Ejectione Firm does not lie of a Tenement, the Plaintiff may release all the Damages, because it is entire, and have Judgement 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 Judgement 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. Rhetoric and Chapel.  
Ejectment was for Entry into a Message sive tenementum, and 4 Acres of Land to the same belonging. As to the Message sive tenementum, The Declaration is uncertain, and if the Damages are Released, 
Warranty.  the Costs are gone also. It is uncertain to which the 4 Acres belong, i. e. to the Message 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 Judgement is against the Defendant who dies, 
Executors not to pay Costs.  and his Executor brings a Writ of Error and is Nonsuited. He shall not pay Costs; an Executor is not within the Statute for paying of Costs, Occasione dilationis, Mod. Rep. 77.  
In Ejectment against 2. A. B. they prayed to be made Defendants, and were so, confessing Lease, Entry and Ouster, and at the Trial A. confessed so much as was in his Possession for certain; but B. would not proceed with him, and the Plaintiff was Nonsuit against both. He that tried it prayed Costs, which the Court granted, but they must join in the Suit of Execution for Costs, 2 Keb. 219. Sir Cyril Wych's Case.  
The Lessor of the Plaintiff in Ejectment shall be liable to Costs, 
Feme liable to pay Costs on Baron Death.  the Lease being made by Baron and Feme; on his Death she is liable as well as other joint-tenant Surviving, 1 Keb. 827. Morgan and Stapel's Case.  
The Lessor of the Plaintiff by several Rules of Court on Demand, 
The Lessor of the Plaintiff where to pay Costs.  aught to pay Costs upon the Insufficiency, or Skulking of the Plaintiff in Ejectment, 1 Keb. 17.  
The Lessor of the Plaintiff is liable to pay Costs (tho' he shall never be forced to give Security for them) but the Lessor of a Tenant in Possession is not liable to Costs, because tho' he may come in gratis and defend his Title, 
Tenant in Possession liable to pay Costs by the Law.  yet the Tenant in Possession, is only liable to pay Costs by the Law. But only by the Course of the Court, unless the Trial be by the Lessors means brought to the Bar, and then he shall never have a second Trial at Bar, before he hath paid the Costs of the former Trial; but yet the Court for Nonpayment of Costs, will not hinder proceed in the Country. Per Cur. 1 Keb. 106. Latham's Case.  
Note, 
In Judgement against his own Ejector, no Cost to be paid by the Tenant in Possession.  Upon a Judgement against his own Ejector in default of confessing Lease, Entry and Ouster according to Rule of Court, without Special Rule no Costs shall be paid, by H. The Tenant in Possession that made the default, etc. Contra, upon Trial had against H. because the Plaintiff hath the Benefit of the Suit, viz. Judgement against his own Ejector, whereby he may recover the Possession, 1 Keb. 242.  
Verdict was for the Defendant, 
Allegation by the Plaintiff to save his Cost, not allowed.  and the Plaintiff to save his Costs, alleged, That the Venue was misawarded, and that there was a Fault in the Declaration; but resolved per Cur' the Defendant shall have his Costs, 2 Rolls Rep. 327: Pritchard and Reynell. Palmer 365. mesme Case,  
The Plaintiff in Ejectment was nonsuited, 
The Plaintiff not to take advantage of his own insufficient Declaration.  which was recorded, and the Defendant sued for Costs upon the Stat. 4. Jac. c. 3. The Plaintiff allegeth insufficiency in his own Declaration to avoid Costs upon the Words of the Stat. That in Ejectione Firm and every other Action where the Plaintiff might recover Costs, etc. If it had been found for him, that then upon Nonsuit, etc. in every such Action the Defendant shall have Judgement to recover Costs against him; and the Plaintiff pretends in such Action he cannot recover where the Declaration is not sufficient. But per Cur' there is no reason the Plaintiff should take Advantage of his insufficient Declaration, Palmer's Rep. 147. Dove and Knapp.  
Debt was brought on the Stat. 
Costs on Stat. 8 Eliz. on Nonsuit, and the Stat. mistaken.  of 8 Eliz. for Costs in an Ejectione Firm, 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 entered, 
Costs for want of Continuances entered.  than a Discontinuance may be entered, and he may recover Costs in Ejectment, 2 Bulstr. 63.  
Per Stat. 
When Nonsuit shall be for want of a Declaration.  13 Car. 2. c. 11. Nonsuit shall be for want of a Declaration before the end o● the next Term after Appearance, and Judgement and Costs against the Plaintiff, Stat● 13 Car. 2. c. 11.  
In all personal Actions, and in Ejection Firm for Lands, etc. depending by Origin●● Writ, 
There need not be 15 days between the Teste-day and Day of return.  after any Issue therein joined, an● also after any Judgement had or obtained, there shall not need to be Fifteen Days between the Teste-day and Day of return o● any Writ of Venire fac', Habeas Corpus, Juratt ' Distringas Jurat', Fiere fac ' or Cap' add sat ', and the Writ of Fifteen days between the Teste-day and the day of return of any such Writ, shall not be assigned for Error, Stat. 13 Car. 2. c. 11.  
Infant Lessor in Ejectment shall pay Costs 3 Keb. 
Infant Lessor pays Costs.  347. Masten and King.  
Upon a Verdict against all Evidence the Court will tax Costs, and will not suspend it till a new Trial, 1 Keb. 294.  
If the Defendant, whose Title is concerned in an Ejectione Firm, will not defend his Title to the Lands in Question, and the Verdict do pass against the Plaintiff, the Ejector may release the Damages, Pr. Reg. 100  
Note, This Rule, as to paying of Costs, if a Man had a Verdict in Ejectment, 
The sole Remedy for Costs in the first Trial is by Attachment, unless the second Trial be in the same Court after a Verdict.  and Costs taxed, and an Attachment for not paying them; and whereas he cannot procure them of him who ought to pay them, he sues the same Party for the same thing again in an other Court, and he shows this by Motion, and prays he may not proceed till Costs paid; yet the Court will not grant it, but he ought to resort to the Remedy of the Process of the Court where he recovered for these Costs; and so it is if it was in the same Court for Costs for not going on to Trial; but if it were for Costs after a Verdict in the same Court, there upon Affidavit of this, it's good Cause to stay the second Trial for the same thing, unless the Costs of the first be paid, Sid. p. 229. Austin and Hood.  
Upon a Trial at Bar in Ejectment where two were made Defendants, 
Where Costs are confessed on Lease, Entry and Ouster, etc. and that the other did not.  and had entered into the Common Rule; and at the Trial one appeared and confessed Lease, Entry and Ouster, but the other did not; and after Evidence given, the Plaintiff was Nonsuited, and Costs taxed for the Defendants. Per Cur' both these Defendants are entitled 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. Fag and Roberts.  
Berkley had Judgement in Ejectione Firm in C. B. and Execution of his Damages and Costs. Foot brings Error, and the Judgement 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 Judgement given in Ejectment against the Intestate. Per Cur' he shall pay no Costs, tho' the Judgement 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 return; 
The Entry.  for the Entry ought to be, Ideo dies datus partibus praedictis, or at least to the Plaintiff, that so he might then pray his Judgement, 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. Matthew and Hassel.  
E. in Ejectione Firm had Judgement by Default against the Defendant; whereupon a Writ of Enquiry issues out to inquire of the Damages, and before the return 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 Judgement, until the Writ of Enquiry be returned. Rolls said, A Writ of Error may be brought before the Writ of Enquiry be returned in Ejectione Firm, for in that Action the Judgement is complete at the Common Law before it be returned; for the Judgement 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 Judgement is not perfect, till the Writ of Enquiry be returned, nor can be made up, as in this Case it may. But in regard that here is no complete Judgement, 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 complete Record is not here. Afterwards in another Case Rolls was of Opinion, That it was a perfect Judgement; 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 Judgement 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 Judgement is well, Stiles Rep. Glide and Dudenu's Case. p. 122. Crook and Sanny. Styles 127. 
The Writ of Error lies upon the Judgement before the return of the Writ of Enquiry, and why.   
This Point is settled now in both Courts. In Ejectione Firm if the Plaintiff recover by Nihil dicit, in which Judgement is given, that the Plaintiff shall recover his Term, and a Writ is awarded to inquire of Damages, a Writ of Error lies upon this Judgement before the return of the Writ of Enquiry of Damages, and Judgement upon it, for the Judgement is perfect as to the Recovery of the Term before by the first Judgement, and the Plaintiff may presently have Execution for the Possession; and peradventure he never will have Judgement for the Damages, and so the Defendant shall be ousted of his Possession sans Remedy. So it is if a Man recover in Ejectione Firm 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 Faucet, Booth and Errington. 5 Rep. Wymarth, and House and Layton. Latch. p. 212.  
Council prayed Abatement of a Writ of Enquiry on 16 and 17 Car. 
Abatement by Death after Judgement or pendant Error, but not after Affirmance.  2. c. 8. by Affidavit of Cesty que vie's Death after the Judgement two days; and by the Act from the Judgement 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 stayed, Warren and Orpwood. M. 25 Car. 2. B. R. 3 Keb. p. 218.    

CHAP. XIV.  
Of Judgement in Ejectment and Execution. The Form of entering Judgement 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 Judgement the Plaintiff dies. Ejectment for the whole, and no Title but to a Moiety. For what Causes Judgements in Ejectment are arrestable or erroneous. In what Cases Judgement shall be amended. Of Judgement against ones own Ejector.  
NO Judgement in Ejectment till Latitat filled, 
Note,  and Bail, 2 Keb. 743.  

The Form of entering Judgements in this Action.  
In Cr. 
Quod recuperet possessionem termini.  El. 144. Matthew and Hassel's Case. It was assigned for Error, That the Judgement was, Quod recuperet possessionem termini praedict', where it should be, Quod recuperet terminum; for as in a Real Action he is to recover Seisin, so in a Personal he is to recover Possession, and the Writ is habere fac' possessionem, 1 Leon. p. 175. mesme Case.  
All the Course of Entries, 
How the Entry is when part is made pro Quer ', and part against.  when part is found for the Plaintiff, and part against him, is to enter only, Quod Def. eat inde sine die quoad, etc. whereof he is acquitted. It was Tailor and Woldboro's Case, Cr. El. 768. Error of a Judgement in Ejectment was brought, because the Defendant was found Not guilty quoad a third part; and the Judgement is entered thereupon, Quod Def. eat inde sine die & quer' in misericordia, etc. 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 Judgement, but because the Plaintiff had not appeared that Term, they caused him to be nonsuited.  
In 1 Rolls Rep. 
Quod Def. sit quietus.  51. Error was assigned because the Judgement in Ejectione Firm in Wales was Quoth Def. sit quietus, such Judgement being only given in a Writ of Right and such Actions which are final; but this Action is not final, and the Judgement should be Quod Def. eat inde sine die, Sir William Morris and Cadwallader's Case.  
In Ejectione Firm, 
Quod Def. remaneat indefens'.  if upon Non sum informatus pleaded, Judgement be given, Quod Def. remaneat indefensus, without saying versus querent ', yet its good, 1 Rolls Abr. 772. Fiegot and Mallory.  
Ejectment was against several Defendants, 
Against several Ejectors.  etc. they were fined severally, where the Ejectment was against them all jointly; but because they were found several Ejectors of several Parcels, the Judgement was good (scilicet) quilibet capiatur quoad his Parcel; and if it had not been joint, it had not been been sufficient, Bendl. 83. Darcy and Mason.  
The Plaintiff shall be in Misericordia but once. 
The Plaintiff shall be in Misericordia but once.  As Ejectment with Force, three of the Defendants were found Guilty of the House, and ten Acres of Land, and Not guilty for the Residue. The fourth Defendant is found Not guilty generally. And Judgement was entered, That he should recover his Term in the House and ten Acres of Land, and Costs against the three Defendants, and that the said three Defendants capiantur, and that they be acquitted quoad residuun, and that the Plaintiff quoad the three Defandants pro falso clamore for so much as they were acquitted; & pro falso clamore, against the fourth Defendant, sit in Misericordia. It's good enough, and the course, that the Plaintiff in such Cases be in Misericordia but once, which is specially entered, Crok. Car. 178. Dockrow's Case.  
In Croke and Sam's Case, Stiles 122. 346. The Judgements was, ideo considerat' est qd. recuperet, and there wants, & Def. capiatur, it is Erroneous.   

Form of the Entry in Case of the Death of the Plaintiff or Defendant.  
Note, That 3 Plaintiffs in Ejectment were, and on general Issue it was found for the Plaintiffs. 
One of the Plaintiffs died during a Curi: advisare.  And 4 days after the Verdict given, was moved to stay Judgement, 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 Judgement, for the Postea came in 15 Pas. which was the 16 of April, at which Day the Court ought to give Judgement 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 Judgement shall have relation to the 16 day of April, at which time he was alive, 1 Leon. 187. Isley's Case.  
In Ejectment two Defendants were found Guilty, 
The Death of one Defendant shall not abate the Writ.  and the other not. The one that is Not guilty dies, The Plaintiff shave Judgement against the other: So it is, if he that is Dead had been Guilty, because this Writ is but as a Trespass, where the Death of one Defendant shall not abate the Writ, Moor 469. 673. Griffith and Lawrence's Case.  
Ejectione Firm against Baron and Feme. 
Ejectione Baron and Feme, Baron dies.  And Verdict pro Quer. and after between the Verdict and day in Banco the Baron dies, and therefore the Court in Lee and Rowley's Case, 1 Rolls Rep. 14. advised the Plaintiff to relinquish this Action, and only to enter the Verdict for Evidence; for if Judgement is given against the Defendant, and one is dead at the time of the Judgement, than 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 Judgement 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 Judgement shall be entered against herself, because the Baron was dead.  
Ejectment against divers, 
Record where not to be amended.  all plead Not guilty; and divers Continuances were between them all, where revera, one of the Defendants was dead after Issue joined, and a Verdict was after found pro Quer. and the Record was moved to be amended. Per Cur. we cannot do it: After Verdict and before Judgement the Plaintiff may surmise, that the Defendant was dead before the Verdict and Continuance was against him, 
One Defendant dies after Issue joined.  as in full Life, Jones 410. Sir John Fitzherbert versus Leech. And  
In Ejectment to try the Custom of Copyhold. 
Suggestion entered on the Roll, one Defendant being dead after Nonsuit.  The Plaintiff was Nonsuit, and one of the Defendants being dead. Hales Chief Justices, advised to Enter a Suggestion on the Roll that one was dead; else the Judgement for the Defendants on the Nonsuit, will be Erroneous as to all, M. 23 Car. 2. B. R. Hawthorn and Bawdan.  
Ejectment was brought against seven, 
Ejectment against seven, and one dies hanging the Writ and Error brought.  one dies, hanging the Writ; and the Judgement was given against the six, without speaking any thing of the seventh, where the Judgement ought to be against them that were in Life, and a nil cap. as to him that was dead. Otherwise, there is a variance between the Writ and Judgement: And a Writ of Error was brought, but it was not well brought; for the seventh joined in the Writ of Error, which was add 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. bethel and Parry, Pal. 152. Mesme Case.  
In Hide and Markham's Case it was Ruled, 
After Verdict and before Judgement the Plaintiff dies and Judgement his given for him the same Term.  That if one bring Ejectione Firm in B. R. and there had a Verdict in a Trial at Bar; and after, before Judgement he dies, and after the Judgement is given for him the same Term; this is not Error, for that the Judgement 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 Judgement is against him; this is Error, for as much as Judgement is given against a dead Man, 1 Rolls Abr. 768. and Jurdan's Case, ibid.  
The Plaintiff in Ejectment dies. 
‛ The Plaintiff dies after Verdict and Judgement was not stayed and why.  Addison's Case, Mod. Rep. 252. Yet as that case was the Court would not stay Judgement, for between the Lessor of the Plaintiff and the Defendant, there was another Cause depending, and tried at the same Assizes when this Issue was tried, and by Agreement between the Parties, the Verdict in that Cause was drawn up, but agreed it should ensue the Determination of this Verdict, and the Title go accordingly: Now the submission to this Rule was an implicit Agreement, not to take advantage of such occurrences as the death of the Plaintiff, whom we know no ways to be concerned in point of Interest and many times but an imaginary person. (Per Cur. We take no notice judicially, that the Lessor of the Plaintiff is the Party interested, 
What notice the Court takes of the Lessor of the Plaintiff.  and therefore we punish the Plaintiff, if he Release the Action, or Release the Damages.) It was said too in behalf of the Judgement, That there was a Man of the same name in the County with him that was made Plaintiff: And by the Court that is sufficient, and the Court shall intent it to be him, were there any one of the same name in rerum natura.  
It is said in Cooper and Franklin's Case. 
Ejectment for the whole, and a Title but to a Moiety, Judgement shall be for the whole.  If one brings Ejectione Firm for the whole, having Title but to a Moiety, that i● hath been adjudged against Bracebridges' Case, in Ploughed. He shall have Judgement for a Moiety, 3 Bulstr. 185.   

In what Cases, and for what Causes Judgements in Ejectment are Arrestable or Erroneous.  
In Savern and Smith's Case, 
Judgement for the whole where it ought to be for a Moiety.  Judgement was the integris tenementis, where it ought to have been for a Moiety; The Judgement was given for the whole, and entire Damages assessed by the Jury. It's Error, Croak Car. 7.  
The Declaration was, Qd. per Indentur. dimisit decimas garbar. rectory de, etc. una cum quodam horreo & gardino eidem rectory pertin. And the Judgement on Demurrer on the Plea was, Ideo, etc. qd. praed. Querens recuperet verse. praefat Def. terminum suum praedict. adhuc ventur' de & in Rectoria horreo & gardino praed. 
More Damages found than the Plaintiff counts.  cum pertin. & damna sua. And more Damages is found in the return of the Inquisition, than the Plaintiff counts. And the entire Rectory was not Let, and no Term supposed in it in the Declaration, but in the said three particulars, and no express Judgement is given for the Tithes and Damages are assessed for the expulsion of the entire Parsonage, of which there was no complaint. It seems its Erroneous, Dyer 258. Plow. 19 1 Bulstr. 49. 10 Rep. 117. 3 Cr. 544.  
Ejectione Firm was brought against four, 
Against Guardian and Infant qd. capiantur.  whereof one was an Infant, and appeared by his Guardian, and Verdict was pro Quer. and Judgement against them quod capiantur. But no such Judgement ought to be against an Infant, and its Error, and Judgement was reversed, Cr. Jac. 274. Holbrook and Doyles Case.  
C. 
Infant appeared be Attorney  One of the Defendants at the time of the Judgement, was within Age, and appeared by Attorney, where it ought to have been by his Guardian, the Judgement being upon Verdict. Per Cur. Its Error; and in regard Damages and Costs are entire, the Judgement shall be reversed for both, by the Stat. 21 Jac. 13. Judgement shall not be Arrested, for that the Plaintiff in any Ejectione Firm, or in any personal Action being under Age did appear by Attorney, and the Verdict did pass for him.  
Judgement was reversed in Error of a Judgement in C. B. 
Not severing and entire Damages.  in not severing for what part by number of Acres by Special Verdict, and giving entire Damages to the Plaintiff, 2 Keb. 250. M●●kworth and Thomasin.  
Ejectione Firm was against Baron and Feme: 
Versus Baron and Feme quod capiantur, tho' the Baron be found Not guilty.  On. Not guilty pleaded, the Feme was found guilty, and the Baron Not guilty; and the Judgement was against Baron and Feme, quod capiantur. This was assigned for Error, but the Plaintiff had Judgement, for so are all the Precedents: But in the Writ it was vi & armis, 
Vi & armis left out in the Declaration.  and in the Declaration vi & armis was left out; and for this cause Judgement was reversed, Cro. Car. 406. Mayo's Case.  
In Ejectione Firm, 
Writ of Enquiry of Damages, without saying, Quod capiatur.  if Judgement be given upon Demur, or by Default, or on Non sum informat for the Plaintiff to recover the Term, but it's awarded that there shall be a Writ of Enquiry of Damages, without saying, Quod capiatur, this is erroneous; for it may be, he will never inquire of the Damages, and make return of it; and then the Fine due upon the Capiatur will be lost, 1 Rolls Abr. 769.  
Note, On Not guilty pleaded, Issue is joined, and a Special Verdict found, and upon this Verdict Judgement given against the Plaintiff, and after the Plaintiff brings a Writ of Error, 
Plaintiff brings a Writ of Error, and the Judgement is reversed. What Judgement he shall have.  and in this the Judgement is reversed, the Plaintiff shall have Judgement to recover his Term, his Declaration being good, and the Law being for him on the Special Verdict: For the Court which reverseth the first Judgement, aught to give the same Judgement which was given in the first Suit, 1 Rolls Abr. 774. Omalcowr and Eyre's.  
Note also, If before Judgement the Years of the Lease expire, the Plaintiff had Judgement to recover Damages; 
Before Judgement the Lease expires, the Plaintiff shall have Judgement for Damages.  otherwise in Actions where Freehold is to be recovered, Savile 28.   

In what Cases Judgements shall be amended.  
The Jury find the Defendant guilty of Ten Acres, 
Twenty Acres entered for ten Acres.  and the Judgement was entered of Twenty Acres, the Judgement was amended, Winch. p. 8.  
If on Non culp ' pleaded, a Verdict is for the Plaintiff, and Costs and Damages given; and upon this the Judgement is, Quod quer' recuperet the Damages and Costs, and not quod recuperet terminum, 
Quod recuperet terminum left out.  as the use is; this is the Default of the Clerk, and so amendable, 1 Rolls Abr. 206. Belch and Pate.  
The Clerk of the Entries of the Judgements had mistaken the Parcels, 
Variance of Parcels.  the Jury having found several Ejectments in several Parcels, they find S. had ejected him out of certain Parcels by a certain Name, 
Amendment.  and T. had ejected him out of other Parcels by a certain Name, and mistook that S. had ejected him out of the Parcels that T. had ejected him, having the Distringas for his Direction. But it was amended, for the Entry was, quod recuperet versus S. unum Messuagium, etc. which was the Ejectment made by T. and so vice versa; whereas the Court's Judgement was, quod Judicium intretur pro Quer'.  
In Ejectione Firm of one Message, two Cottages, and certain Lands, and the Jury find the Defendant guilty of the Moiety of a Message and Lands, and Not guilty of the two Cottages and of the other Moiety of the Message and Lands, and Judgement is, quod Quer' recuperet Terminum suum praedict' de medietate tenementorum praedictorum, & eat inde sine die for the residue; and this Judgement, altho' it may be intended that Judgement is given for the Moiety of the two Cottages, 
Default of the Clerk.  whereof he is found Not guilty, in as much as it is tenementorum praedictorum, yet it shall be amended, it being only the Default of the Clerk, having the Postea before him when he entered the Judgement, 1 Rolls Abr. 206. Sawyer and Hoskins.  
Judgement quod recuperet, and saith not terminum, yet amended, 1 Keb. 155.  
The Judgement was, 
Amendment for Misprision of the Clerk.  quod recuperet the Possession of a Message, Sixty Acres of Land, Fifty Acres of Meadow, and Fifteen Acres of Pasture; whereas the Verdict was entered, That he was found guilty of the Ejectment of a Message, Ten Acres of Meadow and Thirteen Acres of Pasture, and for the residue, Not guilty; so as there is not any Land in the Verdict, and a lesser Quantity of Meadow and Pasture than is in the Judgement, per Curiam it is amendable, and is not like the Entry of a Capiatur for a misericerdia, which is not amendable, that being an Error in point of Law, and cannot be imputed to the Default of the Clerk: But here the Verdict is the Guide to the Judgement; and when the Verdict is before the Clerk to enter up the Judgement, it is but his Misprision, especially the Entry of the Judgement in the Paper-book being right according to the Verdict, Cro. Jac. 632. Mason and Stephenson.   

EXECUTION.  
In Ejectment against two, 
Two Defendants, one confesseth, the other pleads Not guilty.  one confesseth, the other pleads Not guilty, and at the Trial the Plaintiff is Nonsuited, he cannot take Execution against him that confesseth, but if by Rule of Court one be made Defendant for part and confess, the Plaintiff notwithstanding the Nonsuit, may take Judgement against him that confesseth for his part; but if each Defendant take upon him the whole Title, the Plaintiff in any case cannot have Execution; but one Defendant being Lessor of the House, reserving a Chamber, who never had any notice of the Action, and therefore Judgement entered of the whole House, is not void quoad the Chamber only, but wholly. And Hide would have had the Attorney who entered Judgement, pay Costs, but ordered Possession to be delivered to the Tenant on Agreement to relinquish the Costs, 1 Keb. 786. Burgoigne and Thomas.  
It was a Question much debated, If a Scire fac' quare Executionem habere non debeat upon a Judgement in Ejectione Firm, may be brought by the Administrator of the Lessee (the Plaintiff in Ejectment, 
Scire fac ' upon Judgement in Ejectment may be brought by the Administrator of the Lessee, or Lessor himself.  or by the Lessor himself) against the Free Tenants; and 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, 
Recovery by the Husband in Ejectione of the Wife's Term.  Baron and Feme are ejected out of a Term in the Right of the Wife, and the Husband recovers in Ejectione Firm brought by him in his own Name, this is an alteration of the Term, and vests it in him only, 1 Inst. 46.  
Note, 
After Judgement Court of Equity not to relieve the Mortgagor.  It was adjudged in Throgmorton and Sir Moyle Finch's Case, That after Judgement for the Mortgagee in Ejectment, a Court of Equity cannot relieve the Mortgagor; but he ought to have preferred his Bill before Judgement, 3 Bulstr. 118. The Case was, He by whom the Money was sent to be paid for the Redemption of the Land, was by the way rob of the Money; but the Money was paid presently after.  
Note also, 
No Judgement upon Nihil dicit, but upon Motion in Court.  In Ejectione Firm, 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 Judgement shall be entered 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 Firm 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 Judgement against ones own Ejector.  
Judgement 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 Judgement stayed; but this is a good Declaration of this Term by new Delivery, 
Declaration is of that Term when the Tenant appears.  tho' of Course a Declaration is of that Term always when the Tenant appears, which was but this Term, yet Judgement stayed, 3 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, 
A Trick to gain possession.  and there was a Rule for Judgement against the casual Ejector; 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.  
Judgement against ones own Ejector cannot be entered, 
When Judgement against ones own Ejector to be entered.  till the Postea returned and endorsed, that the Nonsuit was for want of confessing Lease, Entry and Ouster, which the Secondaries agreed for a Rule, 1 Keb. 246. Sir Hugh Middleton's Case.  
Council prayed Judgement against his own Ejector in an Action for Lands in the County Palatine of Chester, 
Judgement against ones own Ejector for Lands in 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. 
1 Keb. 579.   
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 Judgements, 
By whom made out and when.  after Costs taxed and the Judgement signed.  
In Ejectione Firm 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, 
Plaintiff at his own Peril to be put in Possession of the Acres sound.  upon his own showing which they are, shall be put in Possession, Savil p. 28.  
And if a Man bring Ejectione Firm 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, 
How the Sheriff must deliver it.  without setting out the Land, recovered by Metes and Bounds; tho' the Plaintiff had not recovered all the Acres, whereof he brought the Action, and whereof he had supposed the Defendant Tenant, 1 Rolls Abr. 886.  
Now, 
How the Sheriff is to esteem the Acres.  if a Writ of Execution go to the Sheriff, to put a Man in Possession of 20 Acres of Land; the Sheriff ought to give him 20 Acres in quantity, according to the usage of the Country, and not according to the usage of the Statute. And if a Man recovers divers Messages, the Sheriff upon the Writ of Execution (may make Execution of one in the name of all, without going to every one in particular, 
Where delivery of one Message in the name of all by the Sheriff is sufficient or not.  but (if in such Case) the Messages be in the Possession of several Men, he ought to go to every House particularly, and of them to deliver Seisin, and the delivery of Seisin of one, in the name of all is not sufficient, Floid and Bethel.  
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, 
Where the Sheriff is to give all the Acres in particular.  it does not suffice there to give one Acre in the name of the whole recovered; but he ought to set forth all the Acres particularly, so that the Recover or may have benefit of the Judgement in certainty, and the several profits without interruption, Pal. Rep. 289. Molinex and Fulyam.  

Sometime a Rule of Court is to give Possession.  
If one recover Rent or Common, 
How the Sheriff is to give Possession of Rent or Common.  a Writ Issues out to the Sheriff to put him in Possession, and the Sheriff comes upon the Land, and delivers him Seisin of the Rent or Common by parol, this is well done, 22 Ass. 84.  
Hab. fac' Possession ', 
Habere facias Possessionem, good without return.  if execute is good without return. But the Court may command the Sheriff to return it, 1 Rolls Rep. 77.  
Note, 
How Possession to be given of House, Land of Rent  The Sheriff in Cases where Land is recovered, is to put the party in Possession and Seisin by a Twig, Clod, etc. of an House by the Key, etc. of Rent by Corn or Grass growing on the Land, out of which the Rend Issues, 6 Rep. 52.  
Error was of a Judgement in the Kings-Bench in Ireland, and Judgement for the Defendant was reversed, and Judgement given for the Plaintiff, quod recuperet terminum suum praed. 
Habere fac. Possessionem 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 Judgement, 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 Sheriff's demeanour 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, 
Where the Plaintiff shall have a new Habere facias Possessionem.  he may have a new Habere fac' possessionem on motion in Court, and an Attachment against him: But if after quiet Possession others enter, he must have a new Action or Restitution; else by this means, by practice the Plaintiff may turn out any of his after Lessees on Nonpayment of Rent. Had actual possession been by Agreement of the Parites, or by Delivery of the Sheriff, the Party can never after have a Habere fac' possessionem: But if there be agreement to deliver Possession 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 returned (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 expressly resolved in Dame Molineux and Falgam's Case, Palmer p. 289.  
If Haber e facias possessionem go to the Sheriff, 
When the Writ of Hab. fac' Possessionem is returned and filled the Court may not award a new Habere fac' Possessionem, and why.  and he returned Execution of the Writ, and the Writ is filled; there the Court may not award a new Habere fac' possessionem, but before they may, because in the first case it appears the Party had Execution. The Council prayed, That the Defendant might file an Habere facere possessionem to the intent that no new one may be taken out, or that, that was taken out should not be filled after the return of it, which the Court refused; for the Party hath election to return it or not, and may renew it at pleasure, till an effectual Execution be had; albeit the Party had Execution, yet if there were any sudden expulsion of him, he shall not be Estopt, 2 Keb. 245. Underhil and Devereux.  
Also, 
New Habere facias Possessionem.  if the Sheriff give Seisin but of part, he may have new Habere fac' possessionem for the rest.  
So in Style's Case, 2 Browl. 216. Styles upon a Judgement in Ejectione Firm, was put into Possession by the Sheriff, by Habere fac' possessionem, and after the Defendants enters again, and the Writ was returned but not Filled. 
It is at the election of the Sheriff, whether he will return it or not.  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 Gallops 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, 
Where the first Writ is not fully executed the Court will grant a new 〈◊〉.  and came to the House recovered, and removed thereout a Woman and two Children, which were all the persons which upon diligent search he could find in the said House, and delivered to the Plaintiff peaceable Possession to his thinking, and afterwards departed-and immediately after three other persons, who were secretly lodged in the said House expulsed the Plaintiff again: Upon notice of which he returned again to the said House, to put the Plaintiff in free Possession, but the others did resist him, so as without peril of his Life, and of them that were with him in Company, he could not do it. And upon this return, the Court awarded a new Writ of Execution, for that the same was no Execution of the first Writ, and also awarded an Attachment against the Parties, 1 Leon. 145.  
If the Sheriff delivers more Acres than are in the Writ, 
If the Sheriff delivers more Acres than are in the Writ.  this makes not the Writ Erroneous, but Action on the Case lies against the Sheriff for doing it; but if the Writ of Hab. fac. possessionem contains more Acres of Land, than were in the Declaration, the Writ is Erroneous.  
Upon Ejectione Firm, 
Where Habere fac. possession. shall be after the year without Scire fac.  and Judgement Hab. fac. possessionem shall be after the year without a Scire fac. as to the Damages; yet it's not absolutely requisite, that there should be any Scire fac. as to the Land; for if the party take Possession of other Land than he ought, Trespass lies, 1 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 Judgement; which cannot be in this Case as to Land, tho' it may be as to Damages; on Judgement 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 Judgement without a motion in Court. 
Not to be granted after the year, without a motion in Court.  And if it be once executed, tho' the parties are turned out presently by a trick, yet they may not have new Hab. fac. possessionem without motion of the Court, Siderf. pag. 224.  
Note, It was a Question in one Hills' Case, upon the Statute of Maintenance: A Man was out of Possession, and recovered in Ejectione Firm, 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 Misdemeanours in Possession.  
In Ejectment Declarations were delivered, and on Verdict Evidence was found for the Plaintiff against some, and Judgement 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 proceed against them, because there was no proceed against them, but they may bring Trespass against the Sheriff, 
Sheriffs Fee.  and the Sheriff shall be indicted for Extortion; for they cannot take such Fees in case of real Estate as personal, 2 Sid. 155.  
There is a remarkable Case in Siderf. 254. the King against Farr. Farr being a Solicitor, had obtained a Judgement 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 Bail, and for want of it brought her to Newgate; then Farr took the Goods which were of great value. And upon Trial 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 Solicitor.  
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 virtue of an Eigne Judgement, 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 Judgement in the Ejectment, 
In whose name.  shall be in the name of the Lessee during his Term. And note, 
What Evidence shall be given in this Action.  In this Action no Evidence shall be given, as to the Right, which must be, if the Action should be in the Lessors name, and therefore he can have no such remedy, 1 Keb. 731. Sadler and Taylor.  
A Trial 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' Case. If Recovery be in Ejectione Firm, 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 Trials 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 Trial 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, showing 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 Judgement 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 looked 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' 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 Trial 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 Reentry 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 Reenters, he shall in Trespass punish the last Disseisor; otherwise, after his Reentry 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 Judgement, 
Writ of Enquiry for mean profits how abates.  and before or pendent Error, but after affirmed is in mitigation, Warren and Orpwood, 3 Keb. 205.  
Where one Declares on a Fictitious Lease to A. 
In whose name.  for three years, and within the same Term Declares of another Fictitious Lease to B. of the same Lands; the last is not, good for Trespass for the mean profits must be brought in the first Lessees name, ut dicitur.  
It's a note in Siderf. p. 210. If one Recover and had Judgement in Ejectione Firm, according to the usual practice, by confessing Lease, Entry and Ouster, etc. 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.  
Judgement 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 virtue 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. Nonage in Issue on Error where to be tried. Amendment of the Judgement 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. 
Where it lies.  R. upon a Judgement in Ejectment before the Justices in Wales, per Stat. 27 H. 8. Error in Real Actions shall be reversed in B. R. and in personal Actions by Bill before the Precedent and Council of the Marches; 
Ejectment before Justices in Wales.  and because Ejectment was a mixed Action, there was some doubt, but it was resolved, ut supra, Moor p. 248. not 391.  
Writ of Error lies in the Exchequer-Chamber upon a Judgement in a Scire fac ' in Ejectione, Sid. Crook Car. 286.  
Lessor or Lessee may have a Writ of Error on Judgement in Ejectione, Sid. 317.  
In a Writ of Error upon a Judgement in Banco in Ejectione Firm, 
Of what Error the Court shall not take Conisance 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, etc.) And upon Not guilty a Verdict and Judgement was for the Plaintiff, and assigned now for Error, That Judgement 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. 
Variance between the Writ and Declaration.  In this Case the Court ought to reverse the Judgement for this Cause, in as much as this is not assigned for Error, nor the Writ itself certified; so that the Court may not take notice that the Writ is as the Entry of it is certified; and this Exception is but a Variance between the Writ and the Declaration, and perhaps this Exception in the Declaration was but ex abundantia, 
Declaration with an Exception and pleading in such Case.]  and is not parcel of the Rectory, and then he ought not to have demanded the Rectory with an Exception. And it seems it had not been a good Plea for the Defendant in the first Action, to say that it appears by the Declaration that there is an Exception, etc. without Averment in Fact, that it is parcel of the Rectory, 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 joined 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. 
Variance between the Record and the Writ of Error.  1. Because the Writ of Error is directed to the Bishop of Durham and others by Name to remove a Record of Ejectment between such and such, which was coram the said Bishop and seven others by Name, and the Record removed, seems to be a Record of Ejectment before the Bishop and eight others, so it is not the same Record specified in the Writ; for a Record before eight, and a Record before seven cannot be intended the same Record. 2. This Writ of Error is directed to the Bishop of Durham and six others by Name, and the return of the Writ (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' add Messuag' modo F. N. continen' ex Boreal' part, etc. & quoad resid' pro Def. and the Judgement 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 Judgement 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 Firm against two, 
Death of one Defendant dying after Issue pleaded, and before Verdict.  if after Issue joined, and Venire fac ' awarded, one of the Defendants dies; and after a Verdict is given at the Nisi prius for the Plaintiff, and after before Judgement the Plaintiff ●●rmiseth the Death of the one, ut supra, and prays Judgement against the other, and Judgement given accordingly without any Answer to it by the Plaintiff, if it be not true that he is dead, as was surmised, this may be assigned for Error; for in as much as the Plaintiff had made this Surmise, it being a matter of Fact, and the Plaintiff might not have any Answer to it (the use not being to enter ●up this, that, the Plaintiff does not deny it) the Plaintiff had no other Remedy but to assign this for Error. But this is reported otherwise, p. 767. 1 Rolls Abr. 756. Tiffin and Lenton.  
If A. bring Ejectione Firm against B. and C. and after Issue joined 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 Judgement, and so Judgement given only against C. this is not erroneous, altho' the Verdict was against both, in as much as the Judgement was only against him who was in life, 1 Rolls Abr. 767. Tiffin and Lenton.  
If A. 
Nonage in Issue upon Error, where to be tried.  recover against B. in Ejectione Firm 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 Trial 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 Firm is not any real Action; and in as much as it is specially alleged 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 Judgement in Ireland in Ejectment was assigned, 
Deins Age.  that the Plaintiff than Defendant was per Attornat ', and within Age, Judgement was reversed notwithstanding 17 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 Judgement accordant. Error was brought, because in the Venire Constantinus Callard was returned, and so named in the Distringas; 
〈◊〉 by Release.  but in the Panel annexed thereto Constantius Callard was returned and sworn, and so was returned 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 entered in the Names of both the Plaintiffs in the Writ of Error; 
Release from one of the Plaintiffs in Error, shall bar only him that released it, and why.  for 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 Judgement; and they being joined 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 Messages, 15 Acres of Land, 15 Acres of Meadow and 20 Acres of Pasture, and as to the Residue Non Culp. And the Judgement was, That the Plaintiff should recover the Messages 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 joined in nullo est erratum, it was moved in Common Bench for amendment of the Judgement. It was objected. 1. That the time after the Assignment of the Error was passed for the amendment. 
Amendment of the Judgement before a Certiorari awarded in Error.  Per Cur. The time is not past, so long as a Diminution may be alleged, or a Certiorari awarded, it may be amended. 2. The Judgement 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 Judgement according to the Verdict, Jones Rep. p. 9  
Ejectione Firm 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 Panel annexed thereto by the Sheriff, Constantius Callard was Returned and Sworn, 
Release of Errors from one of the Plaintiffs in the Writ of Error pleaded, shall bar only him that Released it, and why.  and so was returned by that name on the back of the Postea. It's manifest Error; for they be distinct names of Baptism, and not amendable. But Curia advisare. 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. 
Ejectment against the Release of one shall not bar the other of a Writ of Error, because this is to recover nothing, but to have restitution of that which he lost by the Judgement.  And the first day of Easter Term pleaded it in Bar as a Plea puis darraine Continuance; and thereon a Demur entered 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 Judgement; and they being joined 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 Judgement 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. 
Outlawry in one of the Plaintiffs pleaded in Error.  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 join, 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, 
Error without Bail, a supersedeas. 13 Car. 2. c. 2.  notwithstanding the Act of 13 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 entire, 3 Keb. 138. Cole and Levingstone. 
Baron and Feme Lessors. it's no Error to allege the the death of the Wife before judgement.   
Baron seized in the Right of the Feme, makes an Ejectment Lease, and the Lessee brings an Action upon it, and hath a Verdict and Judgement; it's not Error to allege the death of the Wife before Judgement, 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 seized in his own right, 1 Rolls Abr. 768. Wilks and Jordan.  
Error was brought to Reverse a Judgement in Ejectione Firm, 
The Plaintiff in Ejectment dead before Judgement.  and Error in Fact assigned, (viz.) That the Plaintiff in the Ejectment was dead before Judgement: To which he that was Attorney for the Plaintiff pleaded, That he was alive at such a place, and upon this Issue joined, and found that he was dead. Per Cur. The Issue is well joined, and the Judgement 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 Firm, 
The Plaintiff dies between Verdict and Judgement, the Judgement is voidable by Error.  and after his Executor Sues Execution by Scire fac ' against the Recoveree; the Recoveree may not avoid the Judgement, nor stay Execution by saying, That the Plaintiff died between the Verdict and Judgement, or such like. But he is put to his Writ of Error, for the Judgement is only voidable, 1 Rolls Abr. 742. Hid and Markham.  
But in 1 Rolls Abr. 768. If a Man brings Ejectione Firm in B. R. and there he hath a Verdict on Trial at the Bar, and after, and before Judgement he dies, 
The Plaintiff dies after Trial Judgement may be given.  and after Judgement is given against him the same Term. This is not Error, because the Judgement relates to the Verdict, Hid and Mark's Case.  
Lessor of the Plaintiff in Ejectment, 
Lessor of the Plaintiffmay may have 〈◊〉 Writ of Error.  may have a Writ of Error upon a Judgement in Ejectione Firm, 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. Keys and Bredon.  
The Defendant obtains a Release of his casual Ejector, 
Issue that he that made the Release was not the same person.  and pleads it to a Writ of Error, of a Judgement by default, of Ejectment in Ireland; altho' the Issue was, that he that made the Release was not the same Person as was casual Ejector. Yet 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, 
Release by Casual Ejector, a fraud.  obtained of the Casual Ejector by the Lessor being but Fictitious is void. And the Court made a Rule, That no such Release be accepted without Leave of the Court, 1 Keb. 740. Keys and Bredon.  
The Case was, As it is Reported in Raymond, 93, Keys and Bredon. The Plaintiff obtains a Judgement against his own Ejector, in a Case where an Infant was in Possession; and the Party concerned in the Lands, 
Release by Casual Ejector, a fraud.  brings a Writ of Error in the name of the feigned Defendant. The Plaintiff in the Writ Pleads the Release of the Defendant. 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 Judgement against Casual Ejector, for not confessing Lease, Entry and Ouster; the Defendant in the Ejector's name brought a Writ of Error, 
Ejector disavows the Suit.  and now the Ejector was brought to the Clerk of the Errors, and disavowed the Suit, and thereupon it was prayed by Council, that a non Pros. may be entered, as is the usual Course in such Case, 2 Keb. 579. M. 21. Car. 2. Wat's 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 Judgement in the County Palatine of Lancaster against him by default, showing 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 Judgement, and the Writ was add grave damnum ipsorum, and the Judgement was only against three, and other five were acquitted, The Error was assigned in the Nonage 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 join, and per tot. Cur. Judgement ought to be reversed against all. Error of a Judgement in Ejectione Firm, 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 Judgement. Commyn brought a Writ of Error in B. R. in Ireland, 
Error in Irel.  and Assigns for Error, the want of an Oiginal. The Plaintiff rejoins, that such a Day an Original Writ was delivered to such a one, and concludes to the Country. And the Judgement was reversed there for want of an Original, on which the Plaintiff brought a Writ of Error for reversal in B. R. in England. And the Judgement given in B. R. in Ireland was reversed here, for the matter was discontinued. Because the Defendant in Ireland concludes all pais, where in truth the matter of his Plea should be tried by the Record, and the Plaintiff in Error doth not Reply, or Demur upon the Plea of the Defendant, and so all is discontinued. Also, there was another apparent Error in the Declaration, viz. the Action brought the 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 verse. Commyn.     

THE TABLE.  

A.  
WHat shall be a good Plea in Abatement, 110  
After Imparlance, no Pleading in Abatement, and why. 111  
Where a Man Pleads in Abatement, he ought to give the Plaintiff a better Writ, ibid.  
Where the Plaintiff by his Demand confesseth the Writ abateable. 112  
Actions real changed in Ejectments, and why. 2  
Acres according to the Statute Measure.  
Accord and Satisfaction, a good Plea in Ejectment. 122  
Declaration in Ejectment by Administrators. 78, 79  
Amendment of Original Writs in Ejectment. 27  
Where, and in what Cases Special Verdicts shall be amended.  
Record of Nisi prius variant from the Roll not amendable. 217  
Affidavit in Ejectment to move for Judgement against the Casual Ejector.  
Where an Answer in Chancery shall be good Evidence at a Trial, 161  
Judgement against the Casual Ejector for want of Appearance, 29  
Appropriation Evidence, 168  
How Ejectment lies in Ancient Demesne, 10  
Ancient Demesne pleaded in Ejectment, 116  
Whether it may be pleaded after Imparlance, 116, 117, 118  
Plea of Ancient Demesne allowed the same Term, and how 118  
Aid Prior, where it shall be granted in this Action, and where not, 122   

B.  
The Bail Lets Lands to B. Judgement is against the Principal, and extent on the Lands Leased. B. brings Ejectment, 21  
Common Bail entered after the Attorney was dead, 31  
When Common Bail to be Filled, ibid.  
Ejectment brought by a Vendee of the Commissioners of Bankrupt, 23  
Declaration upon a Lease by Commissioners of Bankrupts, 78  
Ejectment by Baron and Feme, 36, 75  
Ejectment against Baron and Feme, Baron dies since the Nisi prius, and before the day in Bank, the Action continued against the Wife,  
In Ejectment the Wife found Not guilty, and Special Verdict as to the Husband, 216  
Ejectment against Baron and Feme. Verdict pro Quer. Between the Verdict and day in Bank Baron dies, Q. if Error. But it's good to enter the Verdict for Evidence, 230  
Judgement against Baron and Feme is quod capiantur, tho' the Baron is only found Guilty, 235  
Bill of Exception on the Probate of a Will, 158  
Where Copy of a Bill in Chancery shall be Read in Evidence or not, 159, 160   

C.  
Challenge, what is principal or not, 229  
That the Lessor of the Plaintiff is Cousin, to the high Sheriff is a principal Challenge in our feigned Ejectments, 131  
Challenge for default of Hundredors' at a Trial at Bar, 132  
Colour not sufficient in Ejectione Firm, and why.  
How Tenant in Common of a Moiety may maintain Ejectione Firm, 20  
Ejectment by Tenants in Common, 74  
Conizance of Pleas, how to be demanded, allowed and pleaded, 113  
How Copyholder, or his Lessee shall maintain Ejectment, 15, 16  
Declaration by a Copyholder in Ejectment, 16  
Ejectione Firm, by a Copyholder before admittance, 17  
Copyholder, Mortgagee must be admitted before he can bring his Action, ibid.  
The Lord upon the seizure of a Copyhold may bring Ejectment, till the Heir come to be admitted,  
Copyholder in reversion after an Estate Tail, no Witness, 147  
One Copartner cannot be Evidence for another in Ejectment, ibid.  
Ejectment by Coparceners, 74  
Where Copies of Deeds shall be Evidence or not, 157  
Where Copies of Court Rolls may be given in Evidence, 158  
Ejectment by a Corporation how to be brought, 36, 77  
The Defendant not to plead till Costs assessed in a former Action was paid, and security for new Costs, 126  
The Plaintiff may relinquish his Damages where part of the Action fails, and take Judgement for the other, 218. But the Costs gone,  
Executor not to pay Costs, 219  
Feme liable to pay Costs on the Husband's death, 220  
Lessor of the Plaintiff, where to pay Costs, ibid.  
Tenant in Possession liable to pay Costs by the Law, ibid.  
In Judgement against his own Ejector no Costs to be paid by the Tenant in Possession, ibid.  
Costs for want of Continuance, 222  
Infant-Lessor pays Costs, ibid.  
The sole Remedy for Costs in the first Trial, is by Attachment, unless the second Trial is in the same Court after Verdict, ibid.  
In what Court new Ejectment to be brought, 11  
Of Ejectment in inferior Courts, 38  
Cinque-Ports, 112   

D.  
The Plaintiff may relinquish his Damages where part of the Action fails, and take Judgement of the other, 218  
Diversity where Damages are only recovered, and where the Term, 5  
He that desires to be made Defendant in Ejectment, must give a Note of what is in his Possession, 44  
He that is made Defendant in Ejectment, is not to be charged in Actions by the by, 45  
Rule to make the Owner Defendant, 105  
The Inconvenience of the new Course of Leaving Declarations in Ejectment, 40  
Of Declarations in Ejectment, 47, 48, 49, etc.  
The Certainty and Quality of the Lands ought to be described in Ejectment, 54  
The Plaintiff must declare on one Title only, 61  
Surplusage in the Count not vicious, ibid.  
If the Entry and Ejectment be supposed in the Declaration to be before the Commencement of the Lease, the Declaration is void. 62, 64  
It must be alleged in what Vill the Tenements are, 62  
Ejectment of the fourth part of an House in four parts to be divided, and declares de Tenementis praedictis, 73  
How to declare upon a Lease of Tenant for Life, and him in Remainder, 76  
Where in a Declaration a Life must be averred, and where it need not, 80  
A new Declaration delivered on the Essoyn-day, 81  
The Declaration delivered after the Essoyn-day, and the Consequence, 82  
Where Copies of the Declarations need not be paid for, 83  
Declaration need not be of more Acres than he was ejected, 97  
Of the Omission of vi & armis, 98  
The Omission of Extra tenet, ibid.  
Demanding of a part of Lands, without showing into how many parts divided, 99  
Declaration in Ejectment quod cum good, not so in Trespass. ibid.  
Forms of Declarations in 

B. R. 101  
B. C. 102  
Scaccario, 103    
Copy of a Declaration with the Endorsement, ibid.  
What is to be done after a Declaration delivered, 104  
What is good Service of the Declaration, 107  
How and wherein a Special Verdict shall make a Declaration good, 187  
Decree or decretal Order, where allowed to be Evidence, 164   

DEED.  
Difference between pleading a Deed, and giving it in evidence, 154  
Of finding Deeds in haec verba in Special Verdicts, 178  
Who to show the Original Deed in evidence, 155  
Where a Deed may be proved by Testimony without showing it, 156  
In Ejectment against two, one pleads to Issue, and the other demurs, the Issue isfirst to be tried, and why, 8  
Where, and in what Cases Depositions in Chancery shall be read at a Trial or not, 162  
Where primer Possession makes a Disseisin, 185  
Doomsday-Book good evidence, 155   

E. EJECTMENT.  
The Nature of Ejectione Firm, 1  
The reason of the Change of Real Actions into Ejectments, 2  
Ejectment and Trespass for Battery both in one Writ, 8  
Difference between Ejectione Firm and Quare ejecit infra terminum, 9  
In what Court Ejectment lies, 10  
Where to be brought into the Exchequer, ibid.  
In what Court a new Ejectment may be brought, 11  
How Ejectment to be brought of Lands in Middlesex or London, ibid.  
Who shall have Ejectione Firm, 13  
In what Cases the Action lies, or not, 13, 14, 15  
Against whom Ejectione Firm lies, 33  
Who was counted an Ejector formerly, ib.  
The new Practice in Ejectments, 34  
The old way of Sealing Ejectments, and where, and in what Cases still to be used, 35  
Of the Ejectment Lease, 46  
Of what things Ejectione Firm may be brought, and of what not, 47  
Ejectment against Tenant by elegit in case of holding over  
Ely Jurisdiction pleaded, 114  
Elisors, 130  
Elegit must be showed in evidence, 154  
Entry taken away by Lapse of Time for not entering, 21  
Entry to deliver Declarations, not good to avoid a Fine, 62  
Entry before the Nisi prius to be pleaded at the Assizes, 113  
Difference between Entry after Verdict and Death, ibid.  
What Entry shall be intended, and need not be proved, 169  
Estoppels how found by a Jury, 178   

Evidence, vide Witnesses.  
What shall be good Evidence in Ejectment 151, 152. 153, 154  
If Record be pleaded, it must be sub pede sigilli. 151  
Copy of a Record may be showed in Evidence to a Jury, ibid.  
Exemplificat ' of a record in Wales no good Evidence in B. R. and why, 152  
Scyrograph of a Fine given in Evidence, 153  
But in Fine and Nonclaim the Fine must be showed with Proclamations under Seal, ibid.  
Copy of a Recovery given in Evidence, ibid.  
Inspeximus, how far it is Evidence, ibid.  
Transcript of a Record, or Inrolment of a Deed may be given in Evidence, and how, 154  
Evidence as to Matters of Fait. 157  
Who to show the Original Deed in Evidence, 155  
Where a Deed shall be proved by Testimony, without showing it, 156  
A Deed canceled by Practice, may be showed in Evidence, ibid.  
Copies where Deeds are burnt, good Evidence, ibid.  
Copy out of a Leiger-book, no Evidence 152  
Copy of a Counterpart allowed to be Evidence, ibid.  
Tho' Seals be broken off, yet a Deed may be given in Evidence, ibid.  
Where Copies of Court-Rolls may be given in Evidence, ibid.  
A Will under which a Title of Land is made, must be showed itself, 158  
Where Bills, Answers, Depositions shall be good Evidence, 159  
Where Copy of a Bill shall be read in Evidence, 159, 160  
Where an Answer in Chancery shall be good Evidence or not.  
Where, and in what Cases Depositions shall be read at a Trial, or not, 162  
Exemplification of Depositions, if Evidence, ibid.  
Decree or Decretal Order where allowed to be Evidence, 164  
Pedigree, where allowed to be Evidence or not; what Matter may or must be pleaded, and what Matter may or must be given in Evidence, 165  
Condition to defeat a Freehold found by Jury. ibid.  
What Evidence the Jury shall have with them after Evidence given, 166  
What shall be good Evidence to make a Title, 167  
Evidence as to an Appropriation, 168  
Where constant enjoyment is good Evidence, ibid.  
What is good Evidence to prove Lands parcel of a Priory or not, 170  
What Evidence shall be said to maintain the Issue, ibid.  
Estoppels found by Jury, and how, 165  
A Man ousts the Executors of his Lessee ●r years, what Remedy,   

EXECUTION.  
Execution in Ejectment, 230  
How Execution shall be where there are two Defendants, one confesseth, and the other is found Not guilty,  
Execution on Recovery by Baron in Ejectment of the Wife's Term, 239  
If a Man recover in Ejectment against J. S. who after dies, he must sue Execution against his Heir; for by intendment J. S. his Ancestor was a Disseisor, ibid.  
Extent of a Rectory on Elegit, 169  
Remedy against undue Extent on Elegit by Ejectment, 19  
Exemplification of a Verdict, 175   

ERROR.  
Of what Error the Court shall take Conisance without Certificate, 257  
Variance between the Writ and Declaration, ibid.  
Variance between the Record and the Writ of Error, 258  
Nonage in Issue upon Error where to be tried, ibid.  
Amendment of the Judgement before a Certiorari awarded in Error, 262  
Release of Errors from one of the Plaintiffs in the Writ of Error, shall only bar him that released it, and why, ib.  
Outlawry of one of the Defendants pleaded in Error, 263  
Error without Bail a Supersedeas, ibid.  
Release by casual Ejector, a Fraud, 265, 266  
Error in Ireland, 268   

G.  
Difference between a Guardian and Prochein Amy, 30   

H.  
Habere fac' possessionem how to be executed, 242  
How the Sheriff is to esteem the Acres, 243  
Where Delivery of one Message by the Sheriff in the name of all, is good or not, ibid.  
How the Sheriff is to give Possession of a Rent or Common, ibid.  
Hab. fac. possessionem is good without return, 244  
How awarded into Ireland, ibid.  
In what Cases and when a new Hab. fac. possessionem may be awarded, 244, 245  
Not to be granted after a Year without Motion, 248  
Of Misdemeanour in giving Possession, 249   

I.  
Inspeximus how an Evidence or not in Ejectment, 153   

INTENDMENT.  
Reversion shall be intended to continue, 190  
Where a Lease shall be intended to be in being, 191  
Where a Dying seized shall be intended, 192  
Incertainty in Special Verdict. Vid. Verdict.  
Writ of Inquiry in Ejectment and the Entry, 224  
Stranger may enter notwithstanding Judgement in Intrusion, ●7  
Judgement in Intrusion what, ibid.  
Ejectment by Joyntenant, 75  
Of Issue in Ejectment, 139   

JUDGEMENT.  
Judgement against ones own Ejector when to be entered, 240  
No Judgement against the casual Ejector but by Motion, 104  
No Judgement upon Nihil dicit, but upon Motion, 239  
In what Cases, and for what Causes Judgements in Ejectment are erroneous, 233  
Judgement was reversed for not severing by number of Acres, and yet entire Damages, 234  
Plaintiff brings a Writ of Error, and Judgement is reversed, what Judgement he shall have, 235  
In what Cases Judgements shall be amended, 236  
After Judgement the Court of Equity would not relieve in case of a Mortgage, 239  
Writ of Error lies upon the Judgement by Nihil dicit before the return of the Writ of Inquiry, and why. Chap. Judgement.  
The Form of entering Judgements in Ejectment, 227  
How the Entry is when part is pro Quer ', and part against him, ibid.  
Judgement against several Ejectors, 228  
The Plaintiff shall be in Misericordia but once 229  
One of the Plaintiffs died during a Curia advisare vult, it shall not stay the Judgement, 230  
Suggestion to be entered on the Roll, one Defendant being dead after Nonsuit, 231  
After Verdict, and before Judgement the Plaintiff dies, and Judgement given for him the same Term, 232  
Of pleading to the Jurisdiction, 113   

JURY.  
Another Person sworn on the Jury who was not returned, no Error lies, because an Estoppel, 136  
What Evidence the Jury shall have with 'em after Evidence given, 166  
Jury find the Interest of the Land came to the Lessor, but show not how, 193   

K.  
Lessee of the King may bring Ejectione Firm tho' the King be not put out of the Freehold, 20   

L.  
Of the Ejectment Lease, 46  
The Defendant not to confess Lease Entry and Ouster for any more than is in his Possession, 39  
In what Cases the Court will give leave to return the General Confession of Lease Entry and Ouster, 40  
Of the Defendants refusal to confess Lease, Entry and Ouster, and the consequence 40, 41  
Where the Confession of Lease, Entry and Ouster shall supply an actual Entry or not, 42, 43  
The Term in the Ejectment Lease enlarged, 46  
After Default in Ejctment, the Defendant may confess Lease, Entry and Ouster,  
Lease to Try a Title no Maintenance, 47  
Ejectment brought on a Lease made the ●ame Term, ibid.  
Commencement of Leases, 68, 69, 70  
Where the Lease shall be intended to be delivered on the Day of the Demise, and not of the Date, 71  
Lease not warranted by the Declaration, 83  
Why the new Rule of confessing Lease Entry and Ouster was introduced, 115  
Lease recited in the Release, was admitted to be proved by Witnesses to the Release, without showing the Lease itself, 156  
What notice the Court takes of the Lessor of the Plaintiff, 233  
Jury find Virtute literarum patentium, and find not the Letters Patents under Seal, 19●   

M.  
Ejectment of a Manor, how to be brought, 52, 201  
Manor in Reputation, 196  
The Defendant in Ejectment, not to give in Evidence a former Mortgage made by himself, 169   

O.  
Person Outlawed may bring Ejectione Firm, 21   

P. PEDIGREE.  
Where allowed to be Evidence or not, 164  
Pernomen, where it is material, 71, 96  
Plead in Ejectment, 109   

PLADINGS.  
Of Pleading in Abatement, 110  
Of Pleading to the Jurisdiction, 113  
Conusance of Pleas, how to be demanded, allowed, pleaded, ibid.  
Where Conizance of Plea not allowed in Ejectment, 115  
Pleading Ancient Demesne, 106  
Conclusion of Plea, 118  
Plea puis Darraine Continuance, 119  
Bar, or Recovery in one Ejectione Firm, ●ow far a Bar in another, 126, 127  
Two Defendants, one confesseth, and the ●ther Pleads in Bar, he cannot leave the one ●nd proceed against the other 126   

POSSESSION.  
A good Title in Trespass, but not in E●●ctment, and why, 6  
In what Cases the Party before Entry ●ath Possession, and a Fine and Non-claim all Bar his Right, 14  
Possession in the Lessor of the Plaintiff ●●st appear to be within 20 years, 15  
Long Possession good Evidence, 170  
Et postea, how expounded, 73  
Procedendo denied, because Bail was put B. R. 12  
What is Evidence to prove Land, parcel a Priory or not, ibid.  
Priority of Possession, where and how a ●od Title or not, 179  
Prout lex postulat, How expounded in Special Verdicts, 181, 197  
Where primer Possession makes a Disseisin, 185  
In Ejectment prior Possession, a good Title against the King's Presentation, not so in a Quare Impedit, ibid.   

Mean Profits.  
Action for the Mean profits, and wha● Evidence shall be given in this Action 251  
Whether Lessee may have Action for the Mean profits from the confession of Lease● Entry and Ouster, 254   

Q.  
The nature of a Quare Ejecit infra Terminum, and the difference between it and Ejectione Firm, 9   

R. RECOVERY.  
Recovery and Execution pleaded in former Action, 12  
In Ancient Recoveries the Court will no● put one to prove Seisin in a Praecipe, 15  
What Evidence will serve to prove a Recovery, ibid.  
What thing a Parson in the Ejectment 〈◊〉 a Rectory may prove, 16●   

RENT.  
Upon Entry of the Grantee of a Rent and Retainer till satisfaction of the Arrears, he may upon such Interest quousque maintain an Ejectment, 23   

RELEASE.  
Where the Plaintiff in Ejectment may aid himself by Release of part, 50  
Release pleaded on a Special Verdict, and day given for Argument, 120   

S.  
Deprivation for Simony disables from bringing Ejectment, 18  
Stat. 13 Car. 2. c. 11. expounded 28.  
Stat. 21 Jac. & 13 Car. 2. c. Bail,  
Stat. 16 & 17 Car. 2. cap. 8. Of Amendment, 84  
Stat. W. 2. c. 27— 139  
Stat. 8 Eliz. of Costs, 221  
Stat. 3 H. 7. 10. Of Costs, 224   

T. TRES PASS.  
Difference between Trespass and Ejectione Firm, 5  
Conusance of Trespass includes not Ejectments, 7  
Possession a good Title in Trespass not in ectment, and why, 6  
Colour in Trespass, 7   

TRIAL.  
Ejectment to be tried, where it is supposed the Lease to be made, 12  
Tenant at Will may make a Lease for years, to try Title, and so may a Copyholder, 23  
How Trials below in Ejectment are to be brought, 39  
Stat. 27 H. 8. the Marches, 141  
Consent to alter Trial entered upon the Roll, 142  
Consent to a Trial in a Foreign County, ibid.  
Where issue in Ejectment shall be tried in other County, than where the Land lies, 144, 145, 146  
Of Trial by Mittimus in a County Palatine, 146  
Where the Issue in Tail is liable to execution on a Statute of Scire facias returned, and he comes not in and pleads, he shall not bring his Ejectment, 21  
Of Ejectment being brought by Cesty que Trust, 23  
How a Trustee may be a Witness in Ejectment, 146   

V.  
Variance of the Evidence from the Declaration, what are material Variances, or not, 170  
Variance as 

Times, 172  
Acres, 173  
Vills, ibid.     

VENIRE.  
Of the Venire in Ejectment, 132, 133, 134  
Where a Vill and a Parish shall be intended all one, 155  
Where it shall come de Corpore comitatus, 136  
The Wife found Not guilty, and a Special Verdict as to the Husband which was insufficient, Venire fac' de novo, was awarded, and why, 138   

VERDICT.  
In what Cases not Verdict shall be entered, 140  
Of exemplification of a Verdict, 175  
Of a General Verdict, 177  
Of Special Verdict, ibid.  
Of finding Deeds in haec Verba, 178  
Seven or eight Rules of Special Verdicts, 178, 179, etc.  
The Special conclusion of a Special Verdict, shall aid the Imperfections of it, 186  
Diversities between a General Conclusion and a Special Conclusion, 187  
How a Special Verdict may make a Declaration good, ibid.  
The Judges not bound by the Conclusion of the Jury, except in Special Cases, 188  
Verdict to be taken according to intent, vid. Intendment,  
A General Conclusion depends upon all Points of the Verdict, 189  
Where the dying seized shall be intended, 192  
Jury find the Interest of the Land, but show not how, 193  
All Circumstances necessary shall be intended, ibid.  
Difference between the Limitation and Condition of an Estate, as to the finding by Jury. 194  
Finding the substance of the Issue as sufficient Verdict by presumption, 197  
Where, and in what Cases Entry must be expressly found or not, and of the force of the words prout lex postulat. 197  
Where actual Ouster must be found, 198  
Entry by a College how to be found, 199  
Super totam materiam, the effect of it, 200  
Of the Juries finding by parcel, ibid.  
Jury finds part of the Issue, and nothing for the Residue, ibid.  
Of Surplusage in a Special Verdict, 202  
If the Verdict contain more than in the Declaration, the Plaintiff may Release the Damages, 203  
Where the Jury may conclude upon a Moiety or not, 184  
Where a dying Seized or Possessed must be found, 204  
If Incertainties in Special Verdicts, 206  
As to 

Persons,  
Acres, ibid.  
Place,  
Time,    
Quoad residuum, the operation of those words in a Special Verdict, 208, 209  
Of Verdicts in other Lease or Place than declared, 212  
It must be certain in what part the Plaintiff must have his Habere facias Possessionem, aliter in Trespass, 209  
Where, and in what Cases Special Verdicts may be amended,  
Virtute cujus, he entered and saith not when 46  
Virtute cujus & ijsdem die & anno he entered, 66, 67  
Virtute cujus & pretextu cujus, the difference, 72  
Omission of Vi & Armis in the Declaration, 98  
Where the Party comes in by Limitation of use, he must say vigore statuti, 215   

W.  
Action in nature of Ejectment brought in the Court Marches of Wales, Prohibition granted, 12  
How Collateral Warrants may be given in Evidence, 165   

WITNESSES.  
Who shall be good Witnesses in Ejectment, 147  
How a Trustee may be a Witness or not, 146  
Interest in Equity disables a Man to be a Witness, 147  
In what Cases Parishouses may be Witnesses, ibid.  
One Coparcener cannot be Evidence for another in Ejectment, ibid.  
Copyholder in Reversion after an Estate Tail Witness, ibid.  
Trespassor of the Land no Witness, ibid.  
Tenant at Will may be a Witness to prove Livery, 149  
Witnesses Sell part of the Land before Trial, 148  
Father a Witness for the Son, 149  
In what Cases Attorney, Solicitor or Council, or not to give Evidence against his Client, 150  
Vide Evidence.   

WILL.  
Will under which a Title of Land is made must be showed itself, 158  
What Evidence may or can be given against the Probate of a Will, ibid.  
Bill of Exceptions on the Probate of a Will, ibid.  
Ejectment by Original Writ, 25, 27   

WRIT.  
Amendment of Original Writs in Ejectment, 20  
Writ not to proceed Rege inconsult. where it lies, 12●   
FINIS.