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Of amending the Declaration in Ejectment, staying Proceedings, consolidating Declarations, &c.
each been for one messuage only, the plaintiff might have tried them separately. Barnes 176.
Proceedings were stayed till the lessor of the plaintiff (hould give security for the costs, [his residence being in Ireland;] although this ejectment was brought under the direction of the court of Chancery, and 40 I. security had been already given there. Burr. 4 pt. 1177.
If the lessor of the plaintiff is an insant, the court on motion will oblige him to name a good plaintiff who will be answerable for costs. Stra. 694, 932. Barnes 133.
If a second ejectment is brought, the costs of the first not being paid, the court on motion will stay proceedings therein till those costs are paid. Lord Conyngfiy's case. Stra. 548. Ibid. 1152. So proceedings stayed in error, and a second ejectment, the plaintiff not being able to shew that the writ of error was brought with any other view than to keep off the payment of costs. Stra. 554.
But where the plaintiff in ejectment having declared on one demise, to which not guilty was pleaded; but afterwards finding it necessary to add another demise of trustees, he delivered a new ejectment on the double demise; and on motion to stay proceedings on the last, till payment of costs, and for notice where the lessors were to be found, [grounding the motion, as to the first part, on Lord Cenynsty's case; and as to the latter, on the common case of a qui tam; because here the lessor was to enter into a rule]—The court granted the last part; but as to the costs, they said, it was never done but where it appeared the party was vexatious, or had run the desendant to a great expence, as was Lord Conyngfiy's case, 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 savour, in which they might make their own terms. Short v. King. Stra. 681.
The lessors of plaintiff delivered three ejectments in C. B. and two in B. R. sot the same tenements, and made the desendants attend at rive assizes, but countermanded in time to save costs; and on application to stay proceedings in the last ejectment, tiil costs 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.
Of making up the nifi prius Record in Ejectment.
IF the tenant, or landlord appears, the plaintiff having ■got the plea and rule, must draw up the issue, entitling it of the same term as the plea is of; tlien copy the consent •rule, and annex the • same'to the issue; indorse thereon the notice for trial, and deliver the same to the defendant's attorney, charging 4 d. per sheet; and also for entering the plea and consent rule. The desendant's attorney must pay For she issue, or the plaintiff may sign judgment.
The nifi prius records in ejectment are made up in the same manner as nifi prius records in other actions, for which fee the first volume, observing the distinction between .proceedings by original and by bill.
If the plaintiff, after issue, and before the trial, enter into part, the desendant may, at the assizes, plead this as a plea puts darrein continuance, in bar to the plaintiff's action; but it is at the discretion of the justices, whether they will receive it; but if they do, it stops the trial, and the plaintiff is not to reply to it at the assizes; 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 possession and the trespass; and therefore the death of the lessor [though only tenant for lise] is no abatement; but if the plaintiff, in such case, insist to go on, the court will oblige him to give security for payment of the costs, in case judgment go against him. Stra. 1056.
Of the Trial in Ejectment, and of Judgment against the casual EjeElor for not coafeffing, &c.
IF on the trial the desendant will not appear, and consess lease, entry and ouster, thecourie is tocall the desendant to consess, ££c. and his attorney, if he be within the rule, and then to call the plaintiff and nonsuit him; and pray to have it indorsed on the postea, that the nonsuit was for not consessing lease, entry and ouster, and then upon the return of the postea, judgment will be given against the casual ejector, because the desendant has not complied with the terms of the rule, upon which the court admitted him to be the desendant. Afterwards, on application to the master or protbonotary, costs will be taxed upon the rule for consessing lease, entry and ouster; and if the same are demanded of the desendant, and he resuses to pay them, the court will, on motion and assidavit of such resusal, grant an attachment against him. Salk. 259.
'If there be several defendants, and some of them do not appear and consess, according to the old method, a verdict was to be taken for them. And the postea was indorsed, that the verdict was for them because they did not consess; and then the plaintiff, upon the return of the postea, had judgment against the casual ejector for such lands as were in the possession of those who did not consess. Claxmore v. Searle isf al', Ld. Raym. 729.
But it is said in Salk. 456, that by a rule made 4 Ann. in B. R. In such case the plaintiff shall go on against those who will consess, and shall be nonsuited as to those who will not consess; but the cause of the nonsuit shall be expressed on the record; and then upon the return of the postea, the court being informed what lands were in the possession of those desendants, judgment shall be entered against the casual ejeclor as to them. Mr. Buller in his nist prius says, that he could find no such rule in the printed book. And that in the case 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 casual ejector, as to such of the desendants as were acquitted at the trial for not consessing, as appeared by indorsement on the pojlea, which seems to be the right way. Vide Bull. Ni. Pri. 98.
A rule was made to shew cause, why a non profs for not consessing lease, entry and ou/ier, should not be set aside,
Of the Trial in Ejectments and of Judgment against the casual EjeSior for not confessing,
there being a material variance between the issue and the record; the desendant therefore did not consess. Per cur. Consession would not have been a desence ; desendant might have afterwards moved to set aside the verdict for the variance; the non-profs is regular; but let it be set aside on payment of costs. Barnes 175.
Of Proceeding against the Plaintiff nonsuited at the Trial, and of the Plaintiffs recovering his Costs of a Nonsuit for not confessing, &c.
IF a verdict is given for the desendant, or the plaintiff is nonsuited for any other cause than for the desendant's not consessing lease, entry and oujler, the desendant must proceed to tax his costs on the posica as in other actions, and sue out a capias ad fatisfaciendum against the plaintiff; and if upon shewing the said writ under seal to the lessor of the plaintiff, and serving him with a copy of the rule by consent to consess lease, entry and ou/icr, the lessor of the plaintiff does not pay them, the court will grant an attachment against him.
If the plaintiff is nonsuited, he may pay the costs to which of the desendants he pleases. Stra. 516.
The plaintiff in ejectment is a meer nominal person, and trustee for the lessor; and therefore he cannot release the action, without being guilty of a contempt; or if an action for mesne profits after recovery be brought in his name, and he releases it, he may be committed for a contempt.
So the casual ejector is only a nominal person, and has no interest in the premisses, therefore a casual ejector cannot consess judgment. Stra. 531.
Desendant at the trial did not appear to consess, £sV. a nonsuit happened; and afterwards the plaintiff's lessor, instead of taking his remedy for the costs taxed upon the common rule as he ought to have done, entered judgment against the casual ejector, sued oat a fi. sa. against the desendant's goods, and levied his costs thereon, acting as special bailiff himself. An action being brought for this irregular levy in B. R. the desendant moved in C. B. to set aside the fi. sa. and the court ordered restitution to be made, and the desendant's costs to be paid by the lessor and his attorney; and by consent the action in B. R. to be discontinued without costs, and no other action brought. Barnes »82f