The Jury are to find Costs and Damages in Debt, Trespass, Ejectment, &c,

IF the Plaintiff mistake his Declaration,* the Defendant shall have Costs. The Plaintiff may relinquish his Damages, where part of the Action fails, and take Judgment for the other.* And so is the Rule, If part of the things Demanded in this Action are well demanded, and part of the things de∣manded are not well demanded, and Ver∣dict 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 Judg∣ment for the Residue; and this shall aid Error if Judgment be given accordingly. As in Ejectione Firme of a Messuage, Cottage and Tenement, if it be found for the Plain∣tiff, and entire Damages given for the Page  219 whole, because Ejectione Firme does not lie of a Tenement, the Plaintiff may release all the Damages, because it is entire, and have Judgment for all the Land saving the Tenement; and this shall not be Erroneous. So in Ejectment of Land, and de libertate Pischarie, for libera Pischaria, which is not good, the Plaintiff may Release all the Damages, and have Judgment for the Land only, altho' he cannot be said properly to Release Damages, as to the Pischary where none were, Godb. pag. 354. No. 439. 1 Rolls Abr. 786. Clive and Vere. 1 Rolls Abr. 784, 786. Retorick and Chappel.

Ejectment was for Entry into a Messu∣age sive tenementum, and 4 Acres of Land to the same belonging. As to the Messuage sive tenementum, The Declaration is uncer∣tain, and if the Damages are Released,* the Costs are gone also. It is uncertain to which the 4 Acres belong, i. e. to the Mes∣suage or Tenement. But per Cur. as to the 4 Acres its certain enough, and the words (to the same belonging) are merely void, 3 Leon. p. 228. Wood and Pain.

In Ejectment Judgment is against the De∣fendant who dies,* and his Executor brings a Writ of Error and is Non-suited. He shall not pay Costs; an Executor is not within the Statute for paying of Costs, Oc∣casione dilationis, Mod. Rep. 77.

In Ejectment against 2. A. B. they pray∣ed to be made Defendants, and were so, confessing Lease, Entry and Ouster, and at the Tryal A. confessed so much as was in his Possession for certain; but B. would not Page  220 proceed with him, and the Plaintiff was Non-suit against both. He that tried it prayed Costs, which the Court granted, but they must joyn in the Suit of Execution for Costs, 2 Keb. 219. Sir Cyril Wych's Case.

The Lessor of the Plaintiff in Ejectment shall be liable to Costs,* the Lease being made by Baron and Feme; on his Death she is liable as well as other Joyntenant Sur∣viving, 1 Keb. 827. Morgan and Stapel's Case.

The Lessor of the Plaintiff by several Rules of Court on Demand,* ought 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,* yet the Tenant in Posses∣sion, is only liable to pay Costs by the Law. But only by the Course of the Court, unless the Tryal be by the Lessors means brought to the Bar, and then he shall never have a second Tryal at Bar, before he hath paid the Costs of the former Tryal; but yet the Court for Non-payment of Costs, will not hinder proceedings in the Country. Per Cur. 1 Keb. 106. Latham's Case.

Note,* Upon a Judgment against his own Ejector in defalt of confessing Lease, Entry and Ouster according to Rule of Court, with∣out Special Rule no Costs shall be paid, by H. The Tenant in Possession that made the de∣falt, &c. Contra, upon Tryal had against H. Page  221 because the Plaintiff hath the Benefit of the Suit, viz. Judgment against his own Ejector, whereby he may recover the Possession, 1 Keb. 242.

Verdict was for the Defendant,* and the Plaintiff to save his Costs, alledged, 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. Pal∣mer 365. mesme Case,

The Plaintiff in Ejectment was nonsuited,* which was recorded, and the Defendant sued for Costs upon the Stat. 4. Jac. c. 3. The Plaintiff alledgeth insufficiency in his own Declaration to avoid Costs upon the Words of the Stat. That in Ejectione Firme and eve∣ry other Action where the Plaintiff might re∣cover Costs, &c. If it had been found for him, that then upon Nonsuit, &c. in every such A∣ction the Defendant shall have Judgment to recover Costs against him; and the Plaintiff pretends in such Action he cannot recover where the Declaration is not sufficient. But per Cur' there is no reason the Plaintiff should take Advantage of his insufficient Declara∣tion, Palmer's Rep. 147. Dove and Knapp.

Debt was brought on the Stat.* of 8 Eliz. for Costs in an Ejectione Firme, the Plaintiff being nonsuited, supposing the Statute to be made ad Parliamentum tentum 8 Eliz. where∣as 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.

Page  222 If no Continuance be entred,* then a Dis∣continuance may be entred, and he may re∣cover Costs in Ejectment, 2 Bulstr. 63.

Per Stat.* 13 Car. 2. c. 11. Nonsuit shall be for want of a Declaration before the end o• the next Term after Appearance, and Judg¦ment and Costs against the Plaintiff, Stat• 13 Car. 2. c. 11.

In all personal Actions, and in Ejection Firme for Lands, &c. depending by Origin•• Writ,* after any Issue therein joyned, an• also after any Judgment had or obtained, there shall not need to be Fifteen Days be∣tween the Teste-day and Day of Retorn o• any Writ of Venire fac', Habeas Corpus, Juratt' Distringas Jurat', Fiere fac' or Cap' ad sat', and the Writ of Fifteen days between the Teste-day and the day of Retorn of any such Writ, shall not be assigned for Error, Stat. 13 Car. 2. c. 11.

Infant Lessor in Ejectment shall pay Costs 3 Keb.* 347. Masten and King.

Upon a Verdict against all Evidence the Court will tax Costs, and will not suspend it till a new Tryal, 1 Keb. 294.

If the Defendant, whose Title is concern∣ed in an Ejectione Firme, will not defend his Title to the Lands in Question, and the Verdict do pass against the Plaintiff, the E∣jector may release the Damages, Pr. Reg. 100.

Note, This Rule, as to paying of Costs, if a Man had a Verdict in Ejectment,* and Costs taxed, and an Attachment for not paying them; and whereas he cannot procure them Page  223 of him who ought to pay them, he sues the same Party for the same thing again in an other Court, and he shews 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 Tryal; 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 Tryal for the same thing, unless the Costs of the first be paid, Sid. p. 229. Austin and Hood.

Upon a Tryal at Bar in Ejectment where two were made Defendants,* and had entred into the Common Rule; and at the Tryal one appeared and confessed Lease, Entry and Ouster, but the other did not; and af∣ter Evidence given, the Plaintiff was Non-suited, and Costs taxed for the Defendants. Per Cur' both these Defendants are intitled to the Costs, and he that did not appear, might release them to the Plaintiff. But the Court said, If there should appear to be Co∣vin between the Lessor of the Plaintiff and the Defendant, who did appear to release the Costs, they would correct such Practice when it should be made to appear, 2 Ventr. 2. W. & M. Fagge and Roberts.

Berkley had Judgment in Ejectione Firme in C. B. and Execution of his Damages and Costs. Foot brings Error, and the Judgment is affirmed; whereupon B. prays his Costs for Delay and Charges, but could not have them, for no Costs were in such Case at Page  224 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 Ex∣ecution of the Term, yet he had it of his Cost, 1 Ventr. 124.

Adminstrator brought a Writ of Errorup∣on a Judgment given in Ejectment against the Intestate. Per Cur' he shall pay no Costs, tho' the Judgment was affirmed, and the Writ brought in Dilatione executionis, 1 Ventr.