plaintiff does not pay the costs, the court will grant an attachment against him, on an affidavit of the facts. (a)

How to proceed if plainIf the plaintiff is nonsuited for want of confessing lease, tiff is nonsuit- entry, and ouster; sign judgment against the casual ejeced for want of tor, as if no appearance was entered, upon a 10s. stamp confessing, &c. paper, producing to the clerk the rule for judgment. On

After nonsuit, cannot take out writ of

possession until the day in

bank.

Same point, and held same.

New trial.

Verdict eures a defect in the setting out of

the title.

Execution

the return-day of the distringas, take the record and consent rule, with the judgment paper, to the master, and he will tax the costs, on the consent rule; make a copy of the same; serve defendant therewith, and demand the costs; which, if not paid to the lessor of the plaintiff, he may, on affidavit thereof, move for an attachment. There is no occasion to stamp the rule with a 10s. stamp, nor the postea. Shew the original rule.

Formerly, after a nonsuit at the assizes, for want of confessing a lease, entry and ouster, the plaintiff's attorney immediately signed his judgment and made out a writ of possession; but the practice is since altered, so that now it cannot be done, until after the postea comes in at the day in bank. Styles, 442.

The court held that after a nonsuit for want of defendant's confessing lease, entry, and ouster, the writ of possession cannot be taken out, till after the postea comes in on the day in bank. Doe v. Copeland, 2 Term Rep. 780. Salk. 259. The Common Pleas have determined otherwise, Fairfax v. Bentley, Hil. 27 Geo. 3.

If the plaintiff is nonsuited, he may pay the costs to which of the defendants he pleases. Str. 576.

A new trial may, upon proper grounds, be granted in ejectment, as well as in other cases. 4 Burr. 2224. Goodtitle v. Clayton.

A verdict cures a defect in setting out the title, though it cannot cure a defective title. 2 Burr. 1159. The pleadings were intituled, H. 1 Geo. 3. the lease said to be made 33d year of said king, to hold from the quarter day then last past; verdict was confirmed, as being a mere mistake of the clerk. Ibid.

Execution must be taken out according to what in must be taken right and justice is really recovered, and cannot be taken out according

to right.

(a) See the stat. 4 Jac. 1. c. 3. as to the costs on a nonsuit or a verdict. Also stat. 8 W. 3. c. 11.

out for more; for the judgment is not to be for a moiety: only, it must be that he recover his term. 1 Burr. 366.

If there be a verdict for the plaintiff, he may have a ca. If verdict for plaintiff, may sa. or fi. fa. for the costs, and a writ of hab. fac. poss. have a ca. sa. afterwards, or a writ of possession and fi. fa. together in or fi, fa. for one writ.

costs.

If lessor of plaintiff dies before issue joined, and before If lessor dies. the assizes, and plaintiff is nonsuited for want of confess

ing of lease, &c. the executor of lessor shall not have costs. 2 Wils. 7.

dies.

If in ejectment against two, one dies after issue, but be- Two defenfore trial, the death must be suggested on the roll, and it dants, and one must be awarded, that proceedings stay against the deceased, but no need of quod quer. nil capiat; and judgment must be, not for a moiety, but that plaintiff recover his term; but he must take execution for no more than he hath a right to recover. 1 Burr. 362. Far v. Denn.

If lessor of plaintiff dies, this cannot be pleaded puis Lessor dies. darrein cont. because the right is supposed in the lessee, Hob. 5.

Of the Writ of Possession."

In real actions, where the freehold is recovered, the In real acdemandant has execution by the writ of habere facias tions. seisinam; in ejectment, therefore, it is but just that a similar remedy shall be permitted to the plaintiff, who, as he now has judgment to recover the possession of the land, may put the sentence of the law in execution by virtue of a writ of habere facias possessionem, directing the sheriff to give actual possession to the plaintiff of the laud recovered. The mode of executing this writ is in my Office of Sheriff.

It may be sued out though the lessor of the plaintiff be It may be dead, if tested the last day of the preceding term. Doe sued, though dem. Beyer v. Roe, 4 Burr. 1970. The legal relation lessor be dead. to the day of the teste is proper to be supported in maintenance of a writ of possession on a judgment in ejectment. Ibid.

Ejectment against a feme sole, who married before trial, and verdict and judgment against her by her original name, held that it was regular to issue an hab. fac. pos. and fi.fa. against her by the same name, though the fi. fa. was inoperative. Doe dem. Taggart v. Sarah Butcher, 3 Maule and Selw. 557.

George the third, &c. to the sheriff of Middlesex, greeting: Whereas John Doe, lately in our court, before us at Westminster, by bill without our writ, and by the judgment of the said court, recovered against Richard Roe his term yet to come, of and in one messuage, &c. (here describe the parcels as in the ejectment exactly), with the appurtenances, situate, lying, and being in

in your county, which John Charles on the 2d day of
April, in the 57th year of our reign, demised to the said
John, for a term of years, which is not yet expired, to
hold from the 1st day of April then last past, unto the full
end and term of five years from thence next ensuing, and
fully to be complete and ended; by virtue of which said
demise the said John Doe entered upon the same tene-
ments, with the appurtenances, and was possessed thereof,
until the said Richard afterwards, to wit, on the same 2d
day of April, in the 57th year aforesaid, with force and
arms entered into the said tenements, with the appurte
nances, which the said John Charles demised to the said
John in manner aforesaid, and for the term aforesaid, and
then and there ejected, drove out and removed him the
said John Doe, from his said farm, his said term then and
there not being expired, and him the said John hath with-
held from his possession thereof, and still doth withhold,
whereof the said Richard is convicted, as appears to us of
record: Therefore we command you that without delay,
you cause the said John Doe to have his possession of his
term aforesaid yet to come, of and in the tenements afore-
said, with the appurtenances, and in what manner you
shall have executed this our writ, make appear to us at
Westminster, on
next after
(a); and have
there then this writ. Witness, Edward Lord Ellenbo-
rough, &c. (b)

George, &c. (to the end of the hab. fac. pos. as far as return day,) then say, We also command you, that of the goods and chattels of the said C. D. in your bailiwick, you cause to be made 261. which the said John Doe lately

(b) The plaintiff may, in case he does not effectually get possession on the first writ, have an alias: but both writs should be (in case there be a necessity) awarded on the roll and filed; and there must be a suggestion on the roll that the sheriff did not send the first writ, nor did he do any thing thereon; nor can the second writ issue, till the first is returnable. Palm. 289.

in our said court before us at Westminster, recovered
against the said C. D. for his damages which he had sus-
tained, as well by reason of the trespass and ejectment
aforesaid, as for his costs and charges by him about his
suit in that behalf expended, whereof the said C. D. is
also convicted as appears to us of record: and have you
the said monies before us at Westminster on the said
to render to the said John Doe

next after for his damages, costs and charges aforesaid; and have there then this writ. Witness, &c. N. B. This writ is to If by original be signed by Messrs. Provost and Chambre, and sealed, word (then) a præcipe is made for the office.

The sheriff grants a warrant on this writ; pay 2s. 6d. and he will put the lessor of the plaintiff in possession. One who recovers land part of a highway, must recover it subject to the easement, and the sheriff must deliver possession subject to it. 1 Burr. 133.

leave the

out.

demises by

George, &c. To the sheriff of Middlesex, greeting: Writ of posWhereas A. A. lately in our court before us at Westmin- session on ster, by bill without our writ,(a)and by the judgment of the two several said court, recovered against R. R. his term yet to come, bill. of and in five messuages, and one acre of land, with the appurtenances, in the parish of St. Luke in your county, ginal, say "by (a) If by oriwhich J. H. on the first day of October, in the year of our writ." our reign, at the parish of St. Luke aforesaid, demised to the said A. to hold the same, with the appurtenances, to the said A and his assigns, from the 30th day of September then last past, to the full end and term of five years from thence next ensuing, and fully to be compleat and ended; and also his term then and yet to come, of and in five other messuages, and one other acre of land, with the appurtenances, in the said parish of Saint Luke in your county, which J. M. on the said first day of October, in the year of our reign at the parish of St. Luke aforesaid, demised to the said A. to hold the same with the appurtenances to the said A. and his assigns, from the 30th day of September then last past, to the full end and term of five years from thence next ensuing, and fully to be compleat and ended, by virtue of which said several demises, the said A. entered into the said several tenements, with the appurtenances, and was possessed thereof; until the said R. afterwards, to wit, on the said first day of October in the said year, with force and arms, &c. entered into the said several tenements with the appurtenances which the said J. H. and J. M. had respectively demised to the said A. in manner and for the several terms aforesaid, which were not then nor are yet

expired, and ejected the said A. from his said several farms; whereof the said R. is convicted, as appears to us of record therefore we command you, that without delay you cause the said A. to have his possession of his said several terms yet to come, of and in the said several tenements with the appurtenances; and that you certify If by original to us at Westminster, on next after what manner you shall have executed this our writ; and have you there then (a) this writ. Witness, &c.

say on wheresoever

we shall then be in England. Retraxit.

Attornment.
This is not

in

Frequently the defendant, after entering into the common rule, wishes to withdraw his plea, and confess the action; in that case you must enter a retraxit or a relicta verificatione on the roll.

Attornment.

The tenant very frequently, to save the expence of sheriff's poundage and officers' fees, attorns tenant to the lessor of the plaintiff; in that case make such attornment on a piece of paper, thus (naming the cause):

Be it remembered, that we whose names are hereunder written, being the several tenants in possession of the mesmentioned in suage, land and premises belonging to J. G. situate and the stamp act. being in the parish of, &c. do hereby severally attorn tenants to A. B. of, &c. gentleman, (the lessor of the plaintiff in the above cause,) for such parts of the said premises as are in our respective possessions: and we, each and every of us, have this day severally paid to the said A. B. the sum of 1s. upon such attornment, on account and in part of the rent due, and to become due from us severally and respectively, for and in respect of the said premises; and we do severally and respectively become tenants thereof to the said A. B. from the last past; as witness our hands, this 1817.

Proceedings under 4 Geo.

2. c. 28. s. 2.

where there is

a power to reenter for non

payment of

day of day of

Proceedings under Stat. 4 Geo. 2. c. 28.

That in all cases between landlord and tenant, as often as it shall happen that one half year's rent shall be in arrear, and the landlord or lessor hath a right by law to

(a) If by original leave out the word (then).