Release by Casual Ejector is a fraud.
The Court conceived a Release of Errors,* obtained of the Casual Ejector by the Les∣sor being but Fictitious is void. And the Court made a Rule, That no such Release be ac∣cepted without Leave of the Court, 1 Keb. 740. Keys and Bredon.
The Case was, As it is Reported in Ray∣mond, 93, Keyes and Bredon. The Plaintiff ob∣tains a Judgment against his own Ejector, in a Case where an Infant was in Possession; and the Party concerned in the Lands,* 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 Judgment against Ca∣sual Ejector, for not confessing Lease, Entry and Ouster; the Defendant in the Ejector's name brought a Writ of Error,* and now the Ejector was brought to the Clerk of the Errors, and disavowed the Suit, and there∣upon it was prayed by Council, that a non Pros. may be entred, as is the usual Course in such Case, 2 Keb. 579. M. 21. Car. 2. VVats and Loyd.
In the Lord Byron and Sir VVilliam Juxon's Case, Council prayed leave to discontinue a Writ of Error brought in the Ejector's Page 267 name, of Judgment in the County Palatine of Lancaster against him by default, shew∣ing a Release of Errors by the Casual Eje∣ctor: 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 Eje∣ctor, no Discontinuance in Error, 2 Keb. 853.
Ejectment was brought against eight De∣fendants in B. C. Error was brought, ground∣ed upon the Judgment, and the Writ was ad grave damnum ipsorum, and the Judgment was only against three, and other five were acquitted, The Error was assigned in the Non-age of the three. Per Cur. The Writ of Error was good, tho' it might be also ad damnum of those convicted. But being only in the nature of a Commission, whereby the King Commands the Errors to be exa∣mined; this matter is not material, Hob. 70. Yelv. 209. By Twisden, The constant pra∣ctice is for all to joyn, and per tot. Cur. Judg∣ment ought to be reversed against all. Error of a Judgment in Ejectione Firme, and in the Record a space was left to insert the Costs which had not been taxed, if such an im∣perfect 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 Com∣mon Pleas by Writ of Error, and afterwards amended by Rule of Court in the Common Pleas, The Court of King's Bench must a∣mend Page 268 it accordingly, vid. Hard. p. 905. 1 Ventr: 165. Bell and Richards.
Ejectment was brought in C. B. in Ireland, and declares against Commyn de Castrovilla & Terris de Kilborough, in such a County. The Plaintiff had Verdict and Judgment. Com∣myn brought a Writ of Error in B. R. in Ireland,* and Assigns for Error, the want of an Oiginal. The Plaintiff rejoyns, that such a Day an Original Writ was delivered to such a one, and concludes to the Country. And the Judg∣ment was reversed there for want of an Original, on which the Plaintiff brought a Writ of Error for reversal in B. R. in Eng∣land. And the Judgment given in B. R. in Ireland was reversed here, for the matter was discontinued. Because the Defendant in Ireland concludes al pais, where in truth the matter of his Plea should be tried by the Record, and the Plaintiff in Error doth not Reply, or Demurr upon the Plea of the De∣fendant, and so all is discontinued. Also, there was another apparent Error in the De∣claration, viz. the Action brought de castro villa & terris in Kilborough, without expres∣sing the number and certainty of Acres, and upon such general demand no Habere fac' Possessionem can be awarded and executed, Yelv. 117. St. John vers. Commyn.
