Counterplea of whom the demandant entered, and that the tenant re-entered, receit. Sureties for the for this shews the lease destroyed. (a) It is a good counterplea, that the tenant, who is supposed to be a lessee, is seised in fee (b), or in tail, or was so seised at the day of the writ purchased. (c) The prayor may take issue upon the counterplea (d), or if it be not good may demur. (e) If the demandant pleases, he may immediately admit the prayor gratis, and count against him. (ƒ) In consequence of the great delays which were occasioned to mesne profits. demandants, by persons who had no interest in the lands, praying to be received, by collusion with the tenant, in order to defer judgment, it was enacted by 20 Ed. 1, stat. 3, that where any one before judgment comes in by a collateral title, and prays to be received, before his receit, he shall find sufficient surety as the court shall award, to satisfy the demandant of issues of the lands so to be recovered from that day, that he is received to make answer, until the time that final judgment be given upon the petition of the demandant. (g) Count de novo. Where a writ is brought against baron and feme, and the feme prays to be received, she need not find surety by the statute. (h) It has been doubted, whether, if the receit is granted gratis, it is necessary for the reversioner to find sureties, but the better opinion is said to be that it is. (¿) There are many contradictory authorities as to the necessity of the demandant counting de novo against the tenant by receit. With regard to a feme covert, it seems to be unnecessary to count de novo against her, for she is a party to the writ (k), though the contrary is laid down by Sir Edward Coke. () The ground of the opinion, that the wife must plead immediately, is the wording of the statute of Westminster 2, which says that she must come parata petenti respondere, and therefore that (a) 2 Rol. Ab. 444, l. 9. Br. Ab. given. Rast. Ent. 581, b. Herne's Pl. Count. de Res. 8. 509, b. (b) 2 Rol. Ab. 444, 1. 20, but see a quare in Br. Ab. Count. de Res. 6. (c) 2 Rol. Ab. ubi sup. (h) Fitz. Resc. 189. Br. Ab. Resc. 42. per Cokaign. 2 Inst. 346. (i) Keilw. 110, a; but see Doct. Plac. (d) Br. Ab. Resceit, 115. Cro. Jac. 25. Br. Ab. Resceit, 65, by the pro 242. (e) Co. Ent. 333, b. (ƒ) Herne's Pl. 409, (paged 509). thonotaries, contra. (k) Greswold v. Holmes, Cro. Eliz. 826. Co. Ent. 334, a. Doct. Pl. 25. (1) 2 Inst. 345. she cannot even imparl. (a) If however, the default of the hus- Count de novo. band should be before the demandant has counted, as upon the grand cape, it seems clear that he must count against the tenant by receit. (b) Whatever may be the correct rule with respect to the wife, there seems to be no reason for holding, that the reversioner shall plead without the demandant first counting against him (c), for though the entry is that he comes paratus respondere, yet the statute is not so. According, indeed, to a case in Moor, it is said to have been held that, when the reversioner is received, the demandant shall not count de novo against him, but he shall have oyer of the count against the tenant, and shall plead immediately. (d) A feme covert, or reversioner tenant by receit, may vouch or pray in aid, and may plead such pleas as the husband, &c. might have done. (e) Tenant by receit may likewise plead certain pleas in abatement as coverture in the demandant, misnomer of himself, &c. (f) Plea by tenant by receit. If a reversioner prays to be received, and it is counterpleaded, Judgment in and upon issue joined it is found for him, the judgment is that receit. he be received to defend his right (g), upon which the demand- 1. For him who ant counts de novo against him, and the action proceeds between prays to be rethe demandant and the tenant by receit, and the judgment for ceived. the tenant by receit is the same upon demurrer to the counter plea. (h) mandant. The judgment for the demandant on the default of the party, 2. For the dewho prays to be received, is that he recover seisin of the land. (i) If the tenant by receit makes default, he is not allowed to save his default (k), that is, no grand or petit cape shall issue against him (7); but judgment shall be immediately given. The effect of a default by the tenant by receit, is that he is immediately out of court, and the proceedings are in the same (a) 2 Rol. Ab. 444, 1. 54, quære. Br. Ab. Resceit, 100. Vernon's case, Dyer, 298, a. (b) Br. Ab. Resc. 14. (c) 2 Inst. 345, Booth, 70. Herne's Pleader, 509, a, (d) Moor, 34; but in Moor, 29, this was denied by the other justices against Dyer, and a distinction was taken between receit by feme and by reversioner; and see Greswold v. Holmes, Cro. Eliz. 826. (e) 2 Inst. 344, 2 Rol. Ab. 445. Vin. Ab. Resc. (S). Rast. Ent. 373, a. (f) Thel. Dig. 1. 13, c. 11. Com. Dig. (g) Rast. Ent. 373, a. receit. Judgment in state as they were before he prayed to be received, for no mention in this case is made, in the record, of the receit. (a) The judgment must consequently be entered against the original tenant, and if it is entered against the tenant by receit, it is error. (b) So if the receit is admitted, and the tenant by receit pleads, and the issue is found for the demandant, the judgment is entered by default against the original tenant. (c) If the reversioner is received and pleads in bar, and the demandant is barred, this saves the freehold of the tenant for life. (d) Judgment in case of termor. Receit at the Where a termor is received by the statute of Gloucester, to save his term, even where he pleads a good bar and disproves the title of the demandant, the latter shall have judgment to recover immediately with a cesset executio, during the term. (e) Upon receit in an action in which damages are recoverable, the damages shall be taxed against the tenant by receit. (f) It is seldom absolutely necessary at the present day to resort present day. to the practice of receit, for if the demandant recovers, where a person might have been received, the latter may now generally maintain ejectment, as a reversioner in case of a common recovery, for the forfeiture of the particular estate. (g) So a wife by virtue of the stat. 32 Hen. 8, c. 28, and a termor by stat. 21 Hen. 8, c. 15. But in other cases, it still seems to be necessary for the reversioner to pray to be received, or otherwise he will be compelled to falsify the judgment in an action of a higher nature. In a writ of right therefore where the tenant for life joins the mise on the mere right, and the reversioner neglects to pray to be received, and the tenant loses, it seems that the reversioner is without remedy, for as he is privy in estate, the judgment is evidence against him, and he cannot falsify it in an action of a higher nature. (h) (a) 2 Rol. Ab. 445, I. 40. Br. Ab. Resceit, 45, 69, 120. (b) Kiffin v. Vaughan, Cro. Car. 262. (c) 2 Inst. 351, F. N. B. 156 B, but (d) Br. Ab. Resceit, 132. ment against the first tenant with a ces- (g) Sir W. Pelham's case, 1 Rep. 14, b. (h) Ferrer's case, 6 Rep. 7, a. Of the Jury Process and Trial. THE jury process in real actions, is, in general, the same as in personal actions in the Common Pleas. There are, however, some peculiarities, which it will be necessary to notice. They occur principally in writs of right, of dower unde nihil habet, of assise, and of quare impedit. In general, in real and mixed actions, the nonsuit of one demandant is not the nonsuit of both. (a) In a writ of right, when the mise is joined on the mere right, In writ of right. the trial must be by the grand assise, and not by a common jury. (b) There are consequently two modes of trial in this action: one by the grand assise when the mise is joined on the mere right, and secondly by a common jury when issue is joined upon any collateral point. In either case, the writ of right may be tried at the assises. (c) There was formerly a third mode of trial, viz. by battle, which is abolished by a late statute. When the trial is by the grand assise, the first process is a writ of summons to assemble four knights, in order to choose the grand assise. (d) If the action is to be tried at nisi prius, a clause of nisi prius ought to be inserted in this writ, which must be in the alternative to summon the four knights into bank, or at the assises if the judges come thither before the day in bank. The clause should run thus, "that they be before our justices on the morrow of all souls, or before our justices assigned to take the assises in and for your county, if they shall first come on Monday the first day of July next, at Abingdon, in your county, according to the form of the statute, in such case made and provided;" for if the writ be to summon them into bank, with a clause of nisi prius therein, viz. "unless the justices of (a) Co. Litt. 139, a. Ante, p. 172. (b) Tyssen v. Clarke, 3 Wils. 420. See ante, p. 215. (c) 12 H. 7, 10, b. Br. Ab. Droit de recto, 28. Nisi Prius, 16, 17, 24. Jenk. Cent. 38. Pearson v. Maynard, 1 Taunt. 415. 2 Saund. 45, note. (d) As to the grand assise in a writ of right close, in ancient demesne, see ante, p. 24. 1 Salk. 340. In writ of right. assise shall first come on, &c. at Abingdon, to hold the assises," it is bad and will be quashed, because that would only be a conditional writ to summon the knights into bank, unless the justices of assise come to Abingdon before the day in bank; but if they do come to Abingdon, there is no precept or command to the sheriff, to summon the knights to make an election of other jurors there, or commission to the judges to swear them. (a) If the nisi prius clause be omitted, and the knights come up from a distant county to Westminster, the court will not compel them to be sworn, unless the demandant will pay their expenses. (b) It seems, that the sheriff should return, that he has summoned them in the alternative, according to the exigence of the writ. The sheriff is not bound to execute the summons before the commission day of the assises, but may summon the knights from the grand jury who are present at the assises; nor is it any part of the sheriff's duty to procure the knights to be sworn. (c) If there be not four knights in the county, the sheriff may return others. (d) If the four knights do not appear on the first writ of summons, having been summoned, the demandant may sue out an habeas corpora quatuor militum, in the alternative, as in the writ of summons. (e) Or if the sheriff have not returned the writ, he may issue an alias summons. (f) After the four knights have appeared and been sworn, and have chosen of themselves and twenty (g) others a jury, the next step is to issue (a) Luke v. Harris, 2 Bl. 1261, 1293. 2 Saund. 45, 1. note. (b) Pearson v. Maynard, 1 Taunt. 415. (c) Windle v. Ricardo, 3 B. Moore, 249. 1 Brod. and Bing. 17, S. C. (d) Co. Litt. 294, a. See 2 Saund. 45, i. note. Dyer, 247, b. margin. (e) Dyer, 79, b. 104, a. 2 Towns. Jud. (f) Tyssen v. Clarke, 3 Wils. 562. the case in 1 Leon. 303. In the latter case, the knights returned twenty recognitors, of whom twelve were, together with the four knights, sworn upen the grand assise. In Tyssen v. Clarke, 3 Wils. 560, it is said, that the four knights were "sworn to choose twelve knights girt with swords of themselves and others;" the venire facias, contains the names of twenty-four, including those of the four knights; and sixteen, including the four knights, were sworn upon the grand assise. It seems, that it would be sufficient for the knights to return twelve recognitors; but that, if they return more, it is good. 2 Rol. Ab. 674. Cro. Car. 511, S. C. Hargrave's note to Co. Litt. 159, a, (2). The usual practice is, as stated in the text. |