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a Court of law will not take notice of it; unless the party has taken out execution within the year, and continued it down by vicecomes wn ntisit breve, which may be done without a breach (a).

If the plaintiff die within a year and a day, his executors cannot take out execution without a scire facias; for they are not parties to the judgment: though if execution have been regularly sued out in the lifetime of the testator, the sheriff may execute it after his death; because the authority is from the Court, and not from the party [b).

If after judgment, and before execution, the defendant in ejectment die, and a scire facias go, it must be against the terre-tenants of the land (and the heir may come in as terre-tenant,) and not against the executor without naming him terre-tenant (c).

Where the landlord is admitted to defend on the tenant's non-appearance, and judgment is thereupon signed against the casual ejector, with a stay of execution till further order, the lessor of the plaintiff having succeeded, must apply to the Court for leave to take out execution; and in such case, if a writ of error be brought by the landlord, it may be shewn for cause, and will be a sufficient reason, against taking out execution: but if the landlord omit the opportunity of shewing it for cause, the execution is regular, and cannot be set aside (d).

Where an ejectment was brought against a feme sole, who married before trial, and a verdict and judgment was had against her in her original name; it was held to be regular to issue an habere faM possessionem and fieri facias against her in the same name, although the fieri facias was inoperative (e).

Of the Writ of Error.

By the consent-rule, as has been before observed, the defendant undertakes to appear and receive a declaration: the necessity, therefore, of an original writ, if the proceedings be in the Common Pleas, is superseded; because as the tenant is to appear and receive a declaration, he cannot take advantage of the want of an original, unless in a writ of error: but when a writ of error is brought, the plaintiff must file an original, unless it be after verdict, when it is helped by stat. 38 Eliz. c. 14. (f)

As in the Common Pleas there is no need of an original, (whit" also is the case in the King's Bench when the proceedings are by on

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ginal,) so in the King's Bench, when the proceedings are by bill, there is no necessity for a latitat, or bill of ejectment; but the party must file bail before he can proceed. He must also file a bill of ejectment besides the plea roll, in case a writ of error be brought, before errors are assigned. The reason is, that the Court has no authority to proceed in ejectment by bill, unless the defendant be in custody; therefore, by the rule, bail is ordered to be filed, that the Court may have authority to proceed (a).

The casual ejector cannot bring error, being a mere nominal person; that writ therefore can only be brought after the defendant has appeared, and confessed lease, entry, and ouster (i).

So, if the landlord be permitted to defend, a writ of error cannot issue in the name of the casual ejector (£).

But on a writ of error from an inferior Court, in the name of the casual ejector, the Court will not order a non pros, to be entered, though his release of errors be shewn; because inferior Courts are not competent to proceed, as before observed, by a rule confessing lease, &c. (c).

So, if an infant be tenant in possession, and judgment be against the casual ejector •, because no laches is imputable to an infant (r).

The plaintiff having brought a writ of error in Parliament, the Court obliged him to enter into a rule not to commit waste or destruction during the pendency of the writ. The defendant did not oppose it; and also justified to 400/. (d).

By stat. 16 & 17 C. 1. c. 8. s. 7. it is enacted, That no execution shall be stayed by writ of error upon any judgment after verdict in ejectment, unless the plaintiff in error shall become bound in a reasonable sum to pay the plaintiff in ejectment all such costs, damages, and sums of money, as shall be awarded to such plaintiff upon judgment being affirmed, or on a nonsuit, or discontinuance had; and in case of affirmance, discontinuance, or nonsuit, the Court may issue a writ to inquire as well of the mesne profits, as of the damages by any waste committed after the first judgment, and are therefore to give judgment, and award execution for the same, and also for costs of suit.

This "reasonable sum" is generally double the rent (e).

Under this statute the defendant is intitled by law to his writ of error, if he offer to become bound as the statute directs.

Therefore, where the lessor of the plaintiff swore that the defendant was insolvent, and also that he, the lessor, had a mortgage upon the land to more than it was worth, yet the Court held that the de

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fendant was entitled to his writ of error, he becoming bound in double the rent (a).

The plaintiff in error in ejectment, is not bound to give the defendant in error notice of his entering into recognizance pursuant to 16 U" 17 Car. 1. c. 8. x. 3. to pay costs on affirmance; nor is he required to find bail to join in the recognizance (b).

Nothing shall be assigned for error that it will make it necessary to go again into the title of the premises (c).

Of the Action of Ejectment where the Possession is vacant: Where a Corporation is Lessor of the Plaintiff:and Where the Action is commenced in an inferior Court.

As the old method of proceeding in this action, by sealing a lease on the premises, must still be resorted to in these cases, we have thought proper to notice them as a detached article.

If the premises, the possession of which the plaintiff seeks to recover, be empty, no declaration of course can be delivered or affidavit made of the delivery of it, and consequently the Court cannot proceed to give judgment against the casual ejector (J).—In such case therefore the old way of proceeding must be still pursued, except in the single instance of landlord and tenant, provided for by Stat. 4 G. a. of which hereafter (e).

This is done by entering on the premises, and actually sealing a lease thereon, either in person or by attorney.

If the former method be preferred, the proceeding is thus:

A. (the person claiming title) must go upon the land before the essoign day of the term, and there seal and deliver a lease to B. (any friend of his, as tenant;) and at the same time deliver him possession. This being done, get C. (any other friend) to go upon the premises, and turn out B. the tenant, by thrusting him off the premises: and whilst he continues there serve him with a declaration in ejectment, in which make B. the tenant plaintiff. A. (the person claiming title) the lessor, and C. (the actual ejector) the defendant, and declare on the demise in the lease and subscribe a notice to appear [J").

The declaration is the same as usual, only the real persons are made parties, instead of fictitious names {/).

In order to get judgment in the Court of King's Bench, an affidavit must be made of sealing the lease, and of the ouster by defendant, and of all the facts. This is indorsed to move for judgment against

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the casual ejector, and unless defendant appear and enter into the common rule, judgment may be signed as on a common ejectment.— In the Common Pleas, there is no need of any affidavit, nor any motion for judgment; but on the first day of term, give a rule to plead as in common actions, and if no appearance and plea, at the expiration of the rule, sign judgment (a).

If the landlord, or person claiming title, do not wish to enter himself and seal the lease, he may do it by attorney, and the proceedings arejust the same; the attorney acting as the principal landlord (a).

To warrant the above proceedings, the premises must be vacant; they must be wholly deserted by the tenant, and the lessor of the plaintiff not be able to find out where the tenant is to serve him with an ejectment.

Therefore, where the lessee of a public-house took another and removed his goods and family, but left beer in the cellar; rent being in arrear, the landlord sealed a lease as on a vacant possession, delivered an ejectment, and signed judgment, it was set aside, the lessee still continuing in possession: and a case was mentioned, where leaving hay in a barn at Hendon, was held to be keeping possession. It further appeared in this case, that the attorney for the plaintiff knew whither the lessee removed, and might have served him personally, which need not be done upon the premises.—So, in the case of a renting of ground to which there is no house or barn, if it be known where the tenant lives, he must be served (b).

In cases of a vacant possession, no person claiming title will be let in by the Courts to defend, but he that can first seal a lease on the premises must obtain possession. The person therefore claiming title must resort to his new ejectment (c).

But it is said that any person claiming title to the premises, and who is usually admitted by the Court, may with leave appear and enter into the common rule, upon motion for that purpose (d). But quare now }

Ejectment by a Corporation.—It was formerly held, that when a corporation was lessor of the plaintiff, they should execute a letter of attorney authorizing some person to enter and seal a lease on the land: and then declare upon a demise by deed; but these formalities are no longer necessary, and the declaration may now be in the common form.

If a corporation be aggregate of many, they may set forth the demise in the declaration without mentioning the Christian names of

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those who compose it; but if the corporation be sole, the name of baptism must be inserted; as if the demise be by a bishop (a).

Proceedings in an inferior Court.—Where the proceedings are in an inferior Court, the plaintiff must proceed by actually sealing a lease on the premises, and the defendant tries the title in the name of the casual ejector, to save expense: for inferior Courts are not competent to make rules to confess lease, entry and ouster, and if they were, have no power to enforce obedience to them. It seems, therefore, that if the defendant in an inferior Court enter into a rule to confess lease, &c. and the cause be removed by habeas corpus, and the Judge of the inferior Court grant an attachment against the defendant for disobedience to the rule, the superior Court will grant an attachment against the Judge for exceeding his authority, and obstructing the course of the superior Court (a).

If an habeas corpus be brought to remove a cause in ejectment out of an inferior Court, the lands lying within their jurisdiction, and the lessor of the plaintiff seal a lease on the premises, the Courts above will grant a procedendo a' because the title to the land is local, and therefore properly within the jurisdiction of the Court below, where, if it proceed regularly, it will not be prohibited; but if the lessor have not sealed a lease on the premises, the Courts above will not grant a procedendo (a).

So, if an ejectment be commenced in an inferior Court, and an habeas corpus be brought to remove it, and the plaintiff in ejectment declares against the casual ejector: there may be a rule to confess lease, &c. as if he had originally declared in the Court above, and the Court will not grant a procedendo (a).

If the land lie partly within the cinque ports, and partly without, the defendant cannot plead the jurisdiction of the cinque ports, above; for though the land be local, yet the demise is transitory, and triable any where: and therefore though the plaintiff may lay his action for that which lies within an inferior jurisdiction in tfle Court below, if he take proper measures for the purpose, yet if« will proceed in a superior Court, as the demise is transitory, u>e defendant cannot stop his proceeding, because those Courts b»'e competent jurisdiction (a).

Section III. Of the Action for Mesne Profits.

An ejectment being a feigned action, brought against a nominal defendant, and generally on a supposed ouster, is not a proper action

(a) Run. Eject. 150,151,15a.

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