Mr. Levett's Case of the Inner-Temple.

• Sir Roger Puleston, Kt. Plaintiff.
• Sir Peter Warburton and others, De∣fendants.

THIS was tried at the Bar,* and a Verdict for the Plaintiff; and the De∣fendants have moved in Arrest of Judgment,* for that the Demise is laid the 10th of Apr. 1697. which is not yet come, whereas it should be 1696. which the Plaintiff hath moved to amend, and the same ought to be amended, &c. for these Reasons, wherein I shall only ap∣ply my self to the Statute of the 16 and 17 of King Charles the Second Cap. 8. which I hum∣bly conceive hath not been sufficiently spoken to in this matter, which saith, That no Judgments shall be staid or reversed after Verdict for any Mistake in the Christian Name, Day, Month or Year, by the Clerk, where the right Name, Sirname, Day, Page  85 Month or Year in any Writ, Roll, Plaint or Record preceeding, or in the same Roll or Record are once rightly named, but that all such Omissions, Variations, De∣fects, 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 Lord∣ship.

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 Declarati∣on, for all the mistake was only betwixt septimo & sexto; and there is an Imparlance entred on the Roll in Easter-Term last a∣gainst the casual Ejector, which is right.

As in all Actions brought by Bill, the usual Method of proceeding, is to file the Bill or Declaration in the Office; and as all Defects on the Roll are amendable by that, so this being brought by Original instead of Filing a Bill in the Office, an Imparlance is entred on the Roll, and the Method of proceeding is in the same manner, as in the Common Pleas, the Issue is as much amend∣able 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,* is, That tho' Tenants in Possession being not all du∣ly served in the Country, the Tenants a∣gree to appear so as the Plaintiff would Page  86 consent to try it at the Bar, and that there∣upon there was a new Declaration deliver∣ed, which had this Mistake, and seems to inferr, that the former Declaration was waved, and this was altogether a new Pro∣ceeding, wherein the Court was misinform∣ed; for there was no new Declaration de∣livered, and that which the Defendants pro∣duced, was a Copy of the Issue only, and proved nothing but that there was a Mi∣stake, which appears by the Roll, and is admitted by the Plaintiff, otherwise we need not this motion.

Now, my Lord, that the Defendants Ap∣pearance was to the Declaration delivered in the Country, is plain, for there was no other Declaration delivered, nor was there∣in any other for them to appeal to; be∣sides, 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 con∣fessing Lease, Entry and Ouster, then that Judgment shall be entred against the Defen∣dant Goodluck, &c.

Now, my Lord, I would know what De∣claration the Defendants were to appear to; it must be a Declaration against Goodluck; and what Lease the Defendants were to con∣fess; it must be the Lease mentioned in Page  87 the Declaration against Goodluck; and what Judgment the Plaintiffs were to have, if the Defendants did not confess Lease, Entry and Ouster; it must likewise be upon the Declaration against Goodluck.

Now, my Lord, if the Defendants will shew a Declaration that was delivered them against Goodluck, wherein there was this Mi∣stake, it would be hard upon us; but if they cannot, then the Declaration delivered a∣gainst Goodluck is right, and the demise they are obliged to confess, is the demise in that Declaration, and only mistaken by the Clerk's transcribing it.

Now, My Lord, if the Defendants have confessed a good and right demise, and this hath been tried, then it would be the great∣est hardship in the World, if the Court should not let the Plaintiff have the Benefit thereof; and it is plain that the Demise the Defendants are by Rule to confess, is the Demise in the Declaration against Goodluck. So that, My Lord, if there were no Statute to help it, 〈◊〉 take it with Submission, the Court having tried the Fact, ought to make the Record according to the Fact they have tryed.

As to their consenting to appear for se∣veral of the Tenants that were not duly ser∣ved, on Condition the Plaintiff would try it at Bar; My Lord, that is an Argument against them, and brings us within the Be∣nefit of the Case betwixt Crawley and Parr, where there was a Judgment in Ejectment by Confession, and the Demise laid after the Judgment, and amended after a Writ Page  88 of Error brought, because it was a Judg∣ment by Warrant of Attorney; for it should not be supposed that the Defendant gave a Warrant of Attorney to confess a void Judg∣ment.

Now, My Lord, the Defendants consent∣ing to appear, shall never be intended to a void Declaration, but to a good Declaration in order to a fair Trial. And, My Lord, we are the more intitled to the Benefit of it, be∣cause we are Purchasors, for we give a Con∣sideration 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 amend∣ed, though right in the Declaration against the casual Ejector:

I give this Answer, that the Declaration against this casual Ejector, is not rejected, but is by the common Rule in Ejectment made part of the Cause, insomuch that if the Plaintiff be nonsuited he shall have his Judgment upon that Declaration, and the Return of the Postea is Warrant for that Judgment; so that by the common Rule in Ejectment they are so tied together, that it is all but one Action, and the now De∣fendants are to stand in the casual Ejector's place. But, My Lord, the Words of the Statute are not so strict which are in any Proceedings precedenti Now, My Lord, the Declaration in Ejectment is a Proceed∣ing, Page  89 and it is precedent, and it is within the equitable meaning of the Statute, which in∣tends all Amendments that are by neglect of the Clerk if it appears that they are right in any of the Proceedings, and for that end a Philiser's Note, tho' no part of the Record hath been sufficient to amend by.

And, My Lord, the same may be said when the Defendant is arrested by a Lat. de Placito transgr', and the Plaintiff declares in Debt or Case, and mistakes the Christian Name Sirname, whether shall it be amended by the Lat. and whether the Lat. shall be look∣ed upon to be a Proceeding precedent to the Declaration, because in another Action, and so it would be if a Man be arrested de Pla∣cito transgr', ac etiam Bill', and the Plaintiff declares in Debt only, this is likewise de∣parting from the Writ; but these are war∣ranted by the Practice and Course of the Court, these Processes being made use of only to force an Appearance; and the Plain∣tiff may then declare in Case of Trespass or Debt, as he sees good. Now My Lord, De∣clarations in Ejectment are the same thing, because only made use of to force an Ap∣pearance, 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 Declara∣tion against the now Defendant, is entred on the Roll, and is right.

But with Submission, My Lord, the De∣claration is sufficient to warrant its own Amendment, it being by Original, viz. Que Johan' Levett & Maria eidem Rogero Page  90 demiser' ad terminum qui nondum praeteriit, intraver' & ipsum à firma sua praedicta eje∣cer'. Now, My Lord, the Count may be amended by the Original, which is, that the Plaintiff's Lessors had before that time demised the Premisses to the Plaintiff for a Term not then past; and if the Count be made of a Demise then in being, it is all the Amendment we desire. But, My Lord, here it may be objected, When must that Demise bear date and commence? Must the Court set a Date and Commencement to Plaintiff's Demise?

To which I answer, That the Com∣mencement is certain by the Declaration, videlicet, from the 25th of March last, and that must be the 25th day of March last before the Term the Issue is entred on, which is from 96. and then the Date of the Demise must be betwixt Trinity Term, 96. and the 25th of March before, which points directly at the Mistake which is in Michael∣mass. If the 10th of Aril 1697. instead of 1696. and where the Court can by the Re∣cord 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 ma∣ny Mistakes, hath these general words, and all other Mistakes of the like nature, which My Lord, must be of no Signification, if this be not the meaning of this Statute.

And, My Lord, as to this being the fault of the Clerk, I need no Argument to prove it, for the matter shews it self; and the De∣claration against the casual Ejector being Page  91 right, proves this the Fault of the Clerk in transcribing this wrong, though the Decla∣ration 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 At∣torney 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 ge∣neral 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 Re∣striction hath no relation to the particular defects that were mentioned before, where∣of ours is one, but to the general words on∣ly; 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 Page  92 found with him, he is much more entituled to the Benefit of this Amendment, because it is to support a Verdict; Nay, My Lord, a Verdict that was found according to the Right and Merits of the Cause, which all Courts have been always very tender of.

Lastly, My Lord, I shall offer this to your Lordship. That the matter we pray to a∣mend, is not matter of Substance, yet ought to be amended to avoid Absurdity.

I must confess, that if this had been a De∣mise to commence in futuro, it would have admitted of a greater Argument; but, My Lord, this is a Demise in being at the time of the Declaration, and not yet expired, and so much appears by the Record.

My Lord, the Record is an Issue of Trinity Term 1696. and the Demise is laid the 10th of April, 1697. Habend. from the 25th of March then last past, and the words in the Declaration are dimiser', in the Writ, and demisissent in the Count; and that the Plaintiff entred by Vertue thereof, and was possessed, and the Defendant ejected him, his Term being not ended, &c. all which the Defendant confesses.

This Demise must be before Trinity Term 96. or else the words demiser', demisissent are to no purpose; and it is impossible that be∣fore Trinity Term 1696. the Plaintiff's Les∣sors 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.

Page  93 And if that be the Construction of it, then this is a Deed from the time of the ex∣ecution, 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 be∣ing 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 a∣mended after Verdict.

Lees and Sir Nathaniel Curson,* Bar. in E∣jectment, wherein the Plaintiff's Lessor be∣ing an Infant, the Declaration was, That the Infant demised by his Guardian, which was no Demise, and the Cause being tried at Staff. last Summer Assises, the Defendant's Council insisted on the Mistake, and relied thereon, and it being referred by consent to the Judge, and a Verdict given for se∣curity, the Judge referred the matter to the Court of Common Pleas, who amended it, though never right in any of the Pro∣ceedings.

The Bishop of Worcester's Case in this Court,* where there were five Defendants and but three of them pleaded, and after Ver∣dict amended, and the Verdict was record∣ed against two, that no Issue was jonyed a∣gainst in the Record of Ni. pr.

Page  94 Camberlain against the Hundred of Tun∣dring upon the Statute of Hue and Cry,* where it was ordered, That the Record both of the Declaration and Issue should be amended by the Attornies, and this was before Trial.

Ours is a far stronger Case; for this A∣mending, if it had been before Trial, would not have altered the Issue, or any∣wise influenced the Merits of the Cause.

Now, My Lord, we are intituled to the Favour of the Court, in respect we moved this matter before Trial, and were bid by the Court to move it afterwards; and if this had been a fatal matter, the Plaintiff ought to have been nonsuited, which was then insisted on by the Defendants, and de∣nied; and so the Plaintiff expose his Title. paid the Charges of the Jury and other things, which cost him above 100 l. and if he had been nonsuited, was by Rule but to pay Country Costs, and the Plaintiff's Lessors are Purchasors for a valuable Consi∣deration under a Title of above Sixty years Possession. And having now upon a fair Trial, and a full Evidence obtained a Ver∣dict, we hope your Lordship will put them in a Capacity of reaping the Fruit of it.

The Judgment in Ejectment is double, one as to his Damages, upon which the Costs are attendant, and the other as to the Term whereupon his Possession depends; and the Plaintiff may take out two Executi∣ons, 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 Page  95 Judgment as to Damages and Costs, because the Issue hath been fairly tried, and the Defendants have confessed that the Plaintiff was in Possession, and that the Defendants did eject him; now if his Term was not commenced, but his Possession tortious, yet he is not to be turned out by a Stranger that hath no Title, as the Defendants were, the Jury having found against them, and the Damages are for the entring upon our Possession and ejecting us.

But the Court said, It could not be a∣mended, and Mr. Levet brought a new Trial and recovered.