The Law of ejectments, or, A treatise shewing the nature of ejectione firme the difference between it and trespass, and how to be brought or removed where the lands lie in franchises ... as also who are good witnesses or not in the trial of ejectment ... together with the learning of special verdicts at large ... very necessary for all lawyers, attornies, and other persons, especially at the assizes &c.

CHAP. XIII.

Where the Defendant shall have Costs, and Da∣mages. How the Plaintiff may aid him∣self 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 Judgment, before the Writ of Enquiry, and why. Writ of Enqui∣ry how abated.

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

IF the Plaintiff mistake his Declaration,* 1.1 the Defendant shall have Costs. The Plaintiff may relinquish his Damages, where part of the Action fails, and take Judgment for the other.* 1.2 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

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,* 1.3 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,* 1.4 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

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,* 1.5 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,* 1.6 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,* 1.7 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,* 1.8 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.

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,* 1.9 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,* 1.10 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.* 1.11 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.

If no Continuance be entred,* 1.12 then a Dis∣continuance may be entred, and he may re∣cover Costs in Ejectment, 2 Bulstr. 63.

Per Stat.* 1.13 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,* 1.14 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.* 1.15 347. 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,* 1.16 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 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,* 1.17 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

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.

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 Retorn;* 1.18 for the Entry ought to be, Ideo dies datus partibus praedictis, or at least to the Plaintiff, that so he might then pray his Judgment, 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. Mathew and Hassel.

E. in Ejectione Firme had Judgment by Default against the Defendant; whereupon a Writ of Enquiry issues out to enquire of the Damages, and before the Retorn thereof the Defendant brought a Writ of Error, the Question was, Whether the Writ of Er∣ror were well brought, in regard the Course of the Common Pleas is not to make up the Judgment, until the Writ of Enquiry be re∣torned. Rolls said, A Writ of Error may be

brought before the Writ of Enquiry be re∣torned in Ejectione Firme, for in that Action the Judgment is compleat at the Common Law before it be retorned; for the Judg∣ment 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 re∣covered, there the Judgment is not perfect, till the Writ of Enquiry be retorned, nor can be made up, as in this Case it may. But in regard that here is no compleat Judg∣ment, 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 com∣pleat Record is not here. Afterwards in another Case Rolls was of Opinion, That it was a perfect Judgment; 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 Judgment be affirmed here upon the Writ of Error brought, you may have a Writ of Enquiry in B. R. the Coun∣cil therefore moved for a Certiorari. Rolls, take it, but it will do you no good, for the Judgment is well, Stiles Rep. Glide and Dude∣nu's Case. p. 122. Crook and Sanny. Stiles 127.* 1.19

This Point is setled now in both Courts. In Ejectione Firme if the Plaintiff recover by Nihil dicit, in which Judgment is given, that the Plaintiff shall recover his Term, and a Writ is awarded to enquire of Damages, a

Writ of Error lies upon this Judgment before the Retorn of the Writ of Enquiry of Da∣mages, and Judgment upon it, for the Judg∣ment is perfect as to the Recovery of the Term before by the first Judgment, and the Plaintiff may presently have Execution for the Possession; and peradventure he never will have Judgment for the Damages, and so the Defendant shall be ousted of his Pos∣session sans Remedy. So it is if a Man re∣cover in Ejectione Firme 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. New∣ton and Terry, Taverner and Fawcet, 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.* 1.20 2. c. 8. by Affi∣davit of Cesty que vie's Death after the Judg∣ment two days; and by the Act from the Judgment affirmed in Error, which was a Term after, which the Court granted. But it were better the mean Profits were reco∣verable 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 staid, Warren and Orpwood. M. 25 Car. 2. B. R. 3 Keb. p. 218.

Notes

• * 1.1

  Regular.
• * 1.2

  Release of Damages.
• * 1.3

  Warranty.
• * 1.4

  Executors not to pay Costs.
• * 1.5

  Feme liable to pay Costs on Baron Death.
• * 1.6

  The Lessor of the Plaintiff where to pay Costs.
• * 1.7

  Tenant in Pos∣session liable to pay Costs by the Law.
• * 1.8

  In Judgment against his own Ejector, no Cost to be paid by the Tenant in Possession.
• * 1.9

  Allegation by the Plaintiff to save his Cost, not al∣lowed.
• * 1.10

  The Plaintiff not to take ad∣vantage of his own insufficient Declaration.
• * 1.11

  Costs on Stat. 8 Eliz. on Nonsuit, and the Stat. mis∣taken.
• * 1.12

  Costs for want of Continuan∣ces entred.
• * 1.13

  When Nonsuit shall be for want of a De∣claration.
• * 1.14

  There need not be 15 days between the Teste-day and Day of Retorn.
• * 1.15

  Infant Lessor pays Costs.
• * 1.16

  The sole Re∣medy for Costs in the first Try∣al is by Attach∣ment, unless the second Tryal be in the same Court after a Verdict.
• * 1.17

  Where Costs are confessed on Lease, Entry and Ouster, &c. and that the other did not.
• * 1.18

  The Entry.
• * 1.19

  The Writ of Error lies upon the Judgment before the Re∣torn of the Writ of Enqui∣ry, and why.
• * 1.20

  Abatement by Death after Judgment or pendant Error, but not after Affirmance.