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9 Viner 354.

ment, where there had been no trial or opportunity of trying, though the obtaining the judgment might be owing to the default or even treachery of the defendant's own tenant. The judgment was fet afide. Doe ex dem. Troughton v. Roe, Mich. 7 G. 3. Burr. 1996.

I.

(Z) Writ of Error.

1. IMMEDIATELY after judgment was given in court for the plaintiff in ejectment, upon a fpecial verdict, the defendant delivered into court a writ of error coram vobis, and the court inquiring what error was to be affigned, the attorney told them, infancy in the defendant, who had appeared by attorney, that being error in fact. But the court faid, the defendant ought not to be allowed to affign this error in ejectment, for he comes in of his own accord, and prays to be made defendant, which the plaintiff cannot oppose: and they faid, it was an abuse upon the court, for which the attorney ought to be committed (a). Goodright v. court, how- Wright, Hil. 3 G. 1. G. 1. Str. Str. 25-33. ever, direct

(a) The

ed the record to be amended, and the defendant made to appear by guardian. Str. 33.

Vide Farfide ex dem.

Lord Beauclerk and

others v. Hayley,

2. The death of the plaintiff in ejectment before the day of nifs prius was aligned for error, and the court held it to be a contempt, for every one knows the plaintiff is but nominal, and if a real perfon, yet his release is a contempt. Moore v. Goodright, Eaft. 4 G. 2. Str. 899.

3. Ejectment, and judgment given therein and affirmed, upon a writ of error. In an action brought upon the recognizance (entered into in pursuance of the ftatute 16 Car. 2. c. 8.) against the fureties, the defendant pleaded no damages occurred; the plaintiff replied, and fhewed a breach in non-payment of 187. for costs upon the affirmance of the judgment. Upon defendant's motion, it was referred to the Mafter to fee what was due, and the plaintiff infifted that the Mafter was to inquire into the mefne profits as well as the cofts, which the court agreed in; for the cafes of staying proceedings ftand upon equitable confiderations. Doe v. Roache, Eaft. 10 G. 2. Rep. temp. Hardw. 373.

4. The landlord appeared without the tenant, and after verdict for the plaintiff he brought error, upon which the plaintiff moved to take out execution, which the court refufed to grant ; for though it is left to their discretion, yet that can only be a legal one: The act 11 G. 2. c. 19. f. 13. intended to put the landlord in place of the tenant, that he should not be ftripped by any act of the tenant; Barnes, 208. and it ought to be confidered as if the tenant had brought error, which would undoubtedly be a fuperfedeas. Jones v. Edwards, Mich. 19 G. 2. Str. 1241.

Trin. 17 18 G. 2.

The land

lord had

made him

&

felf defendant upon the tenant's refufing to appear, instead of the casual ejector, against whom judgment had been figned for want of appearance, and judgment being obtained against the landlord, the plaintiff moved for leave to take out execution against the cafual ejector, he being restrained from fo doing without fuch leave by the rule always made in confequence of the 13th fect, of the ftat, 11 G, 2. c. 19.

but

but which was granted without any caufe fhewn against it, notwithstanding the landlord had, in fact, regularly fued out a writ of error before the plaintiff had made his motion for fuch leave; afterwards the landlord came and moved to fet afide the writ of poffeffion as being irregular; but the court were of opinion that the day of fhewing caufe against the plaintiff's rule for leave to fue out execution, was the proper time for him to have fhewn his writ of error as cause against it, and that having omitted to do so he had lost his opportunity of ftaying the execution, therefore that the execution was regular, and ought not to be fet alide. George ex dem. Bradley & al. v. Wisdom, Hil. 32 G. 2. Burr. 756.

5. It was agreed, that a writ of error could not be taken out in the name of the cafual ejector, George ex dem. Bradley et al. v. Wisdom, Hil. 32 G. 2. Burr. 756.

6. The court (B. R.) obliged the plaintiff in error (in parliament) to enter into a rule not to commit wafte or deftruction during the pendency of the writ of error. Wharod v. Smart,

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7. As in the C. B. there is no need of an original, fo in the K. B. there is no neceflity for a latitat or bill of ejectment, but the party must file bail before he can proceed. He must alfo file a bill of ejectment befides the plea roil, in cafe a writ of error be brought before errors are affigned; the reafon is, that the court has no authority to proceed in ejectment by bill unless the defendant be in cuftody, and therefore by the rule bail is ordered to be filed, that the court may have authority to proceed. They do not, however, file a bill in the office against such person as a prifoner of the court, fuggefting that he is delivered to bail, because he is bound by the rule to receive a declaration, and fo they need only make up the plea-roll until a writ of error be brought; though they muft file their bill of ejectment, because in the writ of error no notice is taken of the rule, and therefore a bill must be filed against the perfon as a prifoner of the court, that a proper perfon may appear to the fuperior jurisdiction, and a proper fuit be commenced against him. Runnington's Eject. 204.

8. The tenant in poffeffion not appearing at the trial to confefs leafe entry and oufter, judgment was entered against the cafual ejector. A., an attorney, brought a writ of error in the name of the cafual ejector, which he was ordered to nonprofs at his own expence, and pay cofts; but was excufed from further cenfure, it appearing he had been misinformed. Roe, ex dem. Humphreys v. Doe, Trin. 13 G. 3. Barnes, 181.

(A. a) Confeffing Leafe, Entry, and Oufter.

"T!

Viner 355.

HE confeffion of leafe entry, and oufter, will only ope- Vide Burr. rate to the purpofe for which the ejectment is intended, 667, 668. and is equally fictitious with the ejectment itself; for it would be of extreme ill confequence that fuch a proceeding fhould give a feifin to the defendant in ejectment fo as to enable him to levy a fine: per Lord Hardwicke in Brereton v. Gamul, 2 Atkins, 241. 2. Though the defendant confefs leafe entry and oufter, yet In cafe the he may deny that he is in poffeffion of the premifes, for which landlord the plaintiff goes, and put the plaintiff upon proving it; and if he made de

cannot

have been

46

fendant in- cannot he will be nonfuited. Bull. Ni. Pri. 110. Said to have been determined in a cafe reserved, of Smith and Man, Trin21 G. 3.

ftead of his plaintiff

tenant, the

Bull. Ni. Pri. 110. muft prove his tenant in poffeffion, for the defendant does not, by entering into the rule, confess himself to be landlord of any premises but of fuch as were in the poffeffion of such tenant. cites Smith v. Man. However, it has been faid, that if there be but one defendant as tenant in poffefK. B. at fittings. Cited fion, the plaintiff need not prove him in poffeffion, because if he be not, why did he enter into the rule. Bull. Ni. Pri. 110. cites Doe ex dem. Jeffe v. Bacchus, Mich. 30 G. 2. Efpinaffe, Ni. Pri. 453. Sed. qu. ?

In the K. B. if the premifes are fituate in

London or

3. It feems that if the defendant in an inferior court enter into a rule to confefs leafe, &c. and the caufe be removed by habeas corpus, and the judge of the inferior court grant an attachment against the defendant for difobedience to the rule, the fuperior court will grant an attachment against the judge for exceeding his authority, and obftructing the bufinefs of the fuperior courts: the defendant, it is faid, is not bound by the rule he entered into in the inferior court, fuch rules being confined to the practice of fuperior jurisdictions. Runnington's Ejectment, 152.

4. Judgment against the casual ejector is always granted, unless the tenant in due time (that is, within the time allowed for his appearance) enters into the common rule to confess lease entry and oufter. But if the tenant or his landlord wishes to defend Middlefex, the action, he must, within that time, constitute an attorney who tice requires will make out the common rule, and leave it, with the general iffue, at a judge's chambers in the K. B., or at the prothonotary's to appear on office in the Common Pleas. This rule is, in fubftance, nearly the

and the no

⚫ the tenant

or within

next term,

the first day, fame in both courts, and the purport of it is, that the tenant or the first four other defendant fhall immediately appear, receive a declaration, days of the plead not guilty, in a plea of trespass and ejectment, for the tenethe plaintiff ments in queftion, and that upon the trial of the iffue he shall fhould regu- confefs leafe entry and oufter, and infift upon the title only. The larly move vent effect of this rule being to bring the matter to the mere queftion against the of the plaintiff's poffeffory title. Runnington's Eje&ment, 190.

for judgment

cafual ejec

tor in the beginning of that term, and then the tenant muft appear within four days inclufive after the
motion, or the plaintiff will be entitled to judgment. If, however, the motion be deferred till the latter
end of the term, the court will order the tenant to appear in two or three days, and fometimes imme-
diately, that the plaintiff may proceed to trial at the fittings after term; though if the motion be not
made before the laft four days of the term the tenant need not appear until two days before the effoin day
of the fubfequent term. And fhould the notice in such case require the tenant to appear in the next
In the Common Pleas, if the
term, generally, the tenant hath the whole of that term to appear in.
premises are fituate in London or Middlesex, and the tenant have notice to appear in the beginning of the
term, the plaintiff cannot take any thing by his motion for judgment against the cafual ejector for
default of appearance, unless fuch motion be made within one week next after the first day of every
Michaelmas and Eafter terms, and within four days next after the first day of every Hilary and Trinity
terms. But it has been holden, that this rule does not extend to the cafe of a vacant poffeffion under
the ftat. G. 2.
In country caufes, though the declaration be delivered before the effoin day of Eafter
or Michaelmas term, yet the tenant in both courts is allowed till four days after the next ifluable term,
viz. Hilary or Trinity, to appear; and if the caufe arife in Cumberland, or any other county where the
aflizes are held but once a year, the tenant is not compellable to appear till four days after the term
preceding the affizes. But in the K. B. the plaintiff must move for judgment the fame term in which
the tenant has notice to appear, though the practice is different in the C. B., for there he may move
for judgment at any time during the reat iffuable term. Runnington's Ejectment, 165, 166.

In the cafe
of Dormer
v. Fortels

5. Upon a question, Whether, in the cafe of tenants in common, an actual entry be neceffary to be proved, or whether the

13

confeffion

Lord Mansfield in

Oates v.

an actual

ceffary on

confeffion of leaf entry and outer be fufficient, without any Hil. 11 G.2. actual proof of it? Lord Mansfield delivered the opinion of the cited per court:-That where there was no proof of actual ouster, no actual oufter can be fuppofed, but that flight proof would be fufficient to be left to the jury. However, though no actual oufter pridon, Burr. 1897, can be fuppofed, yet the confeffion of leafe entry and outer is an fufficient to bar a nonfuit for want of proof of actual oulter. The entry was meaning of confeffing leafe entry and outer is to bring the holden nematter to the mere queftion of the plaintiff's poffeffory title. the statute To avoid a fine there must be an actual entry, and the demife 21 Ja. 1. cannot be carried back beyond the actual entry. In all other c. 16. for cafes the confeflion of leafe entry and oufter is fufficient. And fo it is not fettled that it is fufficient for an ejectment brought upon a condition broken. As to the particular cafe of a tenant in common, his lordship faid there were cafes enow to justify the opinion of the court. And he said it was scarce poffible that a tenant in common should bring an ejectment, but where there was an actual ouster. Therefore the opinion of the court was, that the confeffion of leafe entry and oufter was fufficient, in the case of a tenant in common, without proof of an actual ouster. Oates, ex dem. Wigfall, v. Bridon and another, Eafter, 6 G. 3. Burr. 1895.

that the word action,

in that ftat.,

could not

mean eject

ment. Vide the cafe in

7 Mod. 39. where Lord Holt fays,

1

that in cafe of tenants in common

there must be an actual

eufter of one by the other, or eife he fhall not be compelled to confefs leafe entry and ouster. vide what was laid by the Lord Chancellor in Prince v. Heylin 1 Atkins, 493.

And

But Lord Mansfield quotes the words of Lord Holt thus: "He shall not be compelled when he "does not difpute the title; but where he does difpute it he shall be compelled to confefs leale entry * and oufter." Burr. 1897. But in 7 Mod. they are as above stated.

mined con

ment could

and a writ

6. The defendant not having confeffed leafe entry and oufter S. P. in at the trial, the plaintiff was of courfe nonfuited, and immediately C. B.deterafter entered up judgment against the casual ejector, and took out tra, the a writ of possession before the poftea came in on the day in bank. queftion Upon which a rule was obtained, calling on the plaintiff to fhew being, Whether judgcaufe why the writ of poffeffion fhould not be fet afide for irregu- ment larity, and the poffeffion restored. The court were perfectly be figned, fatisfied of the irregularity, and cited 2 Lilly's Pract. Reg. 423. of poffeffion However, as there appeared no reason why the leffor of the taken out plaintiff was not ultimately entitled to recover poffeffion, it was before the agreed that he should retain it; and it was referred to the Mafter day in bank? to fettle what damages the defendant had fuftained by the prema- after taking ture iffuing of the writ of poffeffion. Doe, ex dem. Lord Pal- time to con fider, held merflon v. Copeland, Mich. 29 G. 3. 2 Term Rep. B. R. 779. the practice

The court,

to be that they might. And the C. J. obferved, that there was lefs poffible inconvenience in this practice than otherwife. He alfo obferved the difference between the confent rule, and the condition rule, the latter exprefsly stays execution, but by the other it is exprefsly confented, that judgment may be entered in default of defendant's confeiling leafe entry and oufter. Throgmorton ex dem. Fairfix v. Bentley, Hil. 27 G. 3. 1 Term Rep. B. R. 780, in note («).

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9 Viner 359

(A. 2) Rules and Notes as to Elections.

WHERE by a ftatute a penalty is given against receiving

money in confideration of re-payment of any fum of money on chances relating to the lottery; an agreement by which, in confideration of a fum of money received, one undertakes either to pay a fum of money or give an undrawn ticket, upon the drawing of a certain ticket in the lottery, is not within the ftatute; for the person who is to perform has the election, whether he will pay the money or not; but if he elect to pay, it would be thereby converted into an abfolute contract for the payment of money, and fo make him liable to the penalty. Layton v. Pearce, Dougl. 15.

See Conditions and other proper Titles.

[D]

Emblements.

9 Viner 364.

(A) Who shall have them.

C.
H. being feifed of lands in fee demifes them to 7. K. for
99 years, determinable upon two lives, with provifo that if
7. K. fhould let the premises otherwife than from year to year,
and that only to pasture and not to tillage, and that if they should be
fo let without licence from C. H., it fhould be lawful to C. H.
and his heirs, &c. to enter. J. K. enters and demifes to W. for
one year, without licence obtained from C. H., and fo from year
to year, at will, fo long as the eftate fhould continue. The
tenant W. ploughs and fows the land while his interest at will
fubfifts; afterwards the leafe to 7. K. expires; W. quits pof-
feflion, but enters to reap and take the crop. Trefpafs being
brought against him, it was held on demurrer in C. B. that the
provifo could only operate during the continuance of the leafe;
when that was determined the provifo was gone; and the plain-

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