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Of amending the Declaration in Ejectment, staying Proceedings, confolidating Declarations, &c.

each been for one meffuage only, the plaintiff might have tried them separately. Barnes 176.

Proceedings were ftayed till the leffor of the plaintiff fhould give fecurity for the cofts, [his refidence being in Ireland;] although this ejectment was brought under the direction of the court of Chancery, and 40 l. fecurity had been already given there. Burr. 4 pt. 1177.

If the leffor of the plaintiff is an infant, the court on motion will oblige him to name a good plaintiff who will be anfwerable for cofts. Stra. 694, 932. Barnes 133.

If a fecond ejectment is brought, the cofts of the first not being paid, the court on motion will stay proceedings therein till thofe cofts are paid. Lord Conyngby's cafe. Stra. 548. Ibid. 1152. So proceedings ftayed in error, and a fecond ejectment, the plaintiff not being able to fhew that the writ of error was brought with any other view than to keep off the payment of cofts. Stra. 554.

But where the plaintiff in ejectment having declared on one demise, to which not guilty was pleaded; but afterwards finding it neceffary to add another demife of trustees, he delivered a new ejectment on the double demise; and on motion to stay proceedings on the laft, till payment of costs, and for notice where the leffors were to be found, [grounding the motion, as to the first part, on Lord Conynfby's cafe; and as to the latter, on the common cafe of a qui tam ; because here the leffor was to enter into a rule]-The court granted the last part; but as to the cofts, they said, it was never done but where it appeared the party was vexatious, or had run the defendant to a great expence, as was Lord Conyngby's cafe, who came for a trial at bar on his new ejectment, after the former cause was ready for the bar, which was a matter of mere favour, in which they might make their own terms. Short v. King. Stra. 681.

The leffors of plaintiff delivered three ejectments in C. B. and two in B. R. for the fame tenements, and made the defendants attend at five affizes, but countermanded in time to fave cofts; and on application to ftay proceedings in the laft ejectment, till cofts paid of the former, on account of the vexation,-The court would not do it, inasmuch as costs were not demandable by the rules of the court, Stra: 1099.

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Of making up the nifi prius Record in Eject

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F the tenant, or landlord appears, the plaintiff having got the plea and rule, muft draw up the iffue, entitling it of the fame term as the plea is of; then copy the confent rule, and annex the fame to the iffue; indorfe thereon the notice for trial, and deliver the fame to the defendant's attorney, charging 4 d. per fheet; and alfo for entering the plea and confent rule. The defendant's attorney must pay for the iffue, or the plaintiff may fign judgment.

The nifi prius records in ejectment are made up in the fame manner as nifi prius records in other actions, for which see the first volume, obferving the diftinction between proceedings by original and by bill.

If the plaintiff, after iffue, and before the trial, enter into part, the defendant may, at the affizes, plead this as a plea puis darrein continuance, in bar to the plaintiff's action; but it is at the difcretion of the juftices, whether they will receive it; but if they do, it ftops the trial, and the plaintiff is not to reply to it at the affizes; but the judge is to return it as parcel of the record of nifi prius. Yelv. 180. Cro. Car, 261.

The plaintiff has a right to proceed, both for the poffeffion and the trefpafs; and therefore the death of the lef for [though only tenant for life] is no abatement; but if the plaintiff, in fuch cafe, infift to go on, the court will oblige him to give fecurity for payment of the costs, in case judgment go against him. Stra. 1056.

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Of the Trial in Ejectment, and of Judgment against the cafual Ejector for not confefling, &c.

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F on the trial the defendant will not appear, and confefs leafe, entry and ouften, the courfe is to call the defendant to confefs, &c. and his attorney, if he be within the rule, and then to call the plaintiff and nonfuit him; and pray to have it indorsed on the poftea, that the nonfuit was for not. confeffing leafe, entry and ouster, and then upon the return of the poftea, judgment will be given against the cafual ejector, because the defendant has not complied with the terms of the rule, upon which the court admitted him to be the defendant. Afterwards, on application to the mafter or prothonotary, cofts will be taxed upon the rule for confeffing leafe, entry and oufter; and if the fame are demanded of the defendant, and he refufes to pay them, the court will, on motion and affidavit of fuch refufal, grant an attachment against him. Salk. 259.

If there be feveral defendants, and fome of them do not appear and confefs, according to the old method, a verdict was to be taken for them. And the poftea was indorfed, that the verdict was for them because they did not confess; and then the plaintiff, upon the return of the poftea, had judgment against the cafual ejector for fuch lands as were in the poffeffion of those who did not confefs. Claxmore v. Searle & al', Ld. Raym. 729.

But it is faid in Salk. 456, that by a rule made 4 Ann. in B. R. In fuch cafe the plaintiff fhall go on against those who will confefs, and fhall be nonfuited as to those who will not confefs; but the cause of the nonfuit fhall be expreffed on the record; and then upon the return of the poftea, the court being informed what lands were in the poffeffion of thofe defendants, judgment fhall be entered against the cafual ejector as to them. Mr. Buller in his nifi prius fays, that he could find no fuch rule in the printed book. And that in the cafe of Ellis v. Knowles, E. 7 Geo. 2. C. B. 1 Barnes 118. upon the above precedent of Claxmore and Searle & al, judgment was given, on motion, against the cafual ejector, as to fuch of the defendants as were acquitted at the trial for not confeffing, as appeared by indorsement on the poflea, which feems to be the right way. Vide Bull. Ni. Pri. 98.

A rule was made to fhew caufe, why a non profs for not Confeffing leafe, entry and oufier, should not be fet afide,

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Of the Trial in Ejectment, and of Judgment against the cafual Ejector for not confeffing, &c.

there being a material variance between the iffue and the record; the defendant therefore did not confefs. Per cur. Confeffion would not have been a defence; defendant might have afterwards moved to fet afide the verdict for the variance; the non-profs is regular; but let it be fet afide on payment of cofts. Barnes 175.

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Of Proceeding against the Plaintiff nonfuited at the Trial, and of the Plaintiff's recovering his Cofts of a Nonfuit for not confeffing, &c.

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F a verdict is given for the defendant, or the plaintiff is nonfuited for any other caufe than for the defendant's not confeffing leafe, entry and ouster, the defendant must proceed to tax his cofts on the poftca as in other actions, and fue out a capias ad fatisfaciendum against the plaintiff; and if upon fhewing the faid writ under feal to the leffor of the plaintiff, and ferving him with a copy of the rule by confent to confefs leafe, entry and oufier, the leffor of the plaintiff does not pay them, the court will grant an attachment against him.

If the plaintiff is nonfuited, he may pay the costs to which of the defendants he pleases. Stra. 516.

The plaintiff in ejectment is a meer nominal person, and truftee for the leffor; and therefore he cannot release the action, without being guilty of a contempt; or if an action for mefne profits after recovery be brought in his name, and he releases it, he may be committed for a contempt.

So the cafual ejector is only a nominal perfon, and has no intereft in the premiffes, therefore a cafual ejector cannot confefs judgment. Stra. 531.

Defendant at the trial did not appear to confess, &c. a nonfuit happened; and afterwards the plaintiff's leffor, inftead of taking his remedy for the cofts taxed upon the common rule as he ought to have done, entered judgment against the cafual ejector, fued out a fi. fa. against the defendant's goods, and levied his cofts thereon, acting as fpecial bailiff himself. An action being brought for this irregular levy in B. R. the defendant moved in C. B. to fet afide the fi. fa. and the court ordered reftitution to be made, and the defendant's cofts to be paid by the leffor and his attorney; and by confent the action in B. R. to be difcontinued without costs, and no other action brought. Barnes 182.

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