to. CHAP. I. SECT. 1. appear to the ejectment, and judgment be consequently entered against the casual ejector, the plaintiff has no other. remedy for his costs than by his action for mesne profits, Who entitled noticed hereafter (s), in which they are recoverable against the tenant as consequential damages (t). If there be several defendants, and the plaintiff have a verdict, each of them is liable for the entire costs, even although they defend severally (u). If several defend jointly, and succeed, they shall be entitled to costs; but the plaintiff may pay the costs to which of them he pleases (r); if they defend severally, they are entitled to costs if they succeed, in the same manner as in other cases (y). So, if the plaintiff be nonsuit on the merits, the defendant is entitled to costs (z); but where he is nonsuit because the defendant has not confessed, lease, entry, and ouster, we have seen (ante, 751, 759) that, so far from being liable to costs, he is entitled to them from the defendant according to the terms of the consent rule. The defendant is entitled to costs on a nonpros for the plaintiff's not replying when the lessor of the plaintiff has joined in the consent rule, or for not proceeding to trial according to notice, or on a judgment as in case of a nonsuit (a). By rule H. T., 2 W. 4, r. 74, the defendant is entitled to costs on those issues on which he succeeds. Where the declaration contained one count only, and the property mentioned in the declaration consisted of three messuages, as to two of which the jury found for the plaintiff, and for the defendant as to the residue, the defendant was held to be entitled to his costs, so far as related to the messuage which the plaintiff failed to recover (b). It is entirely for the decision of the master to refer particular costs incurred at the trial to one issue or the other, and it being a mere question of fact, the court will not interfere (c). vered. How recovered.] If the plaintiff have a verdict against the How recodefendant, he recovers his costs by execution, or by action, as in other actions; but if entitled to costs under the consent rule, By Plaintiff. for not confessing lease, entry, and ouster, the way of recovering them is either by execution founded on the consent rule, under the 1 & 2 V. c. 110, s. 18, which, it would seem, authorizes execution in this case (d), or by attachment for nonpayment, which, before the 1 & 2 V. c. 110, s. 18, was the only remedy (e). The mode of proceeding by attachment is as follows: Give the defendant the usual one day's notice of taxation, as directed post, Book IV. Part I. Ch. 31, title "Costs;" "then take the judgment paper, consent rule, and postea, to one of the masters, and he will tax the costs upon the rule. Then, make a copy of the rule and allocatur; serve it personally (*) Post, 785. (t) Morris v. Barry, 1 Wils. 1; 2 Str. 1180, S. C.: Symonds v. Page, 1 C. & J. 29. (u) Bul. N. P. 335, 336. (a) Jordan v. Harper, 1 Str. 516: Duthy v. Tito, 2 Id. 1203. (y) 8 & 9 W. 3, c. 11, s. 1: see the 3 & 4 W. 4, c. 42, s. 32. (z) 4 J. 1, c. 3. (a) See Tidd. Supp. 189: ante, 751. Doe v. Errington, 4 Dowl. 602: see Doe v. Hughes, 4 Dowl. 412. (c) Doe v. Webber, 4 Nev. & M. 381. (d) See, as to execution upon a rule of BOOK III. PART I. How, by Defendant. How affected Parties. on the defendant, at the same time shewing him the original rule; make a demand of the costs, and if he do not pay them, more the court, upon an affidavit of the demand and refusal (f), for an attachment against him (g). If the defendant were entitled to costs, either upon verdict or where the plaintiff was nonprossed or nonsuit, his only remedy, previously to the 1 & 2 V. c. 110, s. 18, was by attachment; for, the lessor of the plaintiff not being a party to the record, he could not have had a writ of execution against him, but must have proceeded upon the consent rule only. But now, by force of the 18th section of that Act, it would seem that the order for payment of costs in the consent rule may be enforced by execution (h). The mode of proceeding by attachment is as follows: Tax costs upon the postea, as in other cases, make copies of the rule and allocatur, and serve them on the lessor of plaintiff, at the same time shewing him the originals, and demanding the costs; and if he do not pay them, move the court upon an affidavit of the demand and refusal (i), for an attachment against him (k). Suing out a ca. sa. against the nominal plaintiff is unnecessary (1); and the defendant may at once proceed on the consent rule, in the manner directed supra, as to the plaintiff's proceeding for costs upon a nonsuit (m). The remedy by execution is, however, pre ferable. How affected by Death of Parties.] Where the lessor of the by Death of plaintiff died between the commission day and the trial, and the plaintiff was nonsuit on the merits, it was holden, that the executor of the lessor was not liable for the costs of the nonsuit (n). Where husband and wife were lessors, and the former died after entering into the rule, the wife was, notwithstanding, held liable for the costs; because they were to be paid by the lessor of the plaintiff, and both of them were such (0). Where or dered to be Parties. When Ordered to be Paid by Third Parties.] The court paid by third may, under circumstances, in ejectment, though not in any other action(p), compel the real defendant to pay the costs, though he is no party to the record (q). And where A. was the tenant in possession of part of the premises and landlord of the whole, and B. and C., his tenants of other parts, were mere paupers, and three ejectments were brought against them, to which three appearances were entered, it was considered that the lessor of the plaintiff, to secure his costs of the proceedings against the paupers, might have applied to the court, or a judge at chambers, to set aside, with costs, (f) See the forms, Chit. Forms, 386. (h) See as to execution upon a rule of for same after verdict for defendant, Id. (i) See the form, Chit Forms, 386. (1) Doe Fry v. Fry, 2 Dowl. 265; 2 C. & M. 234, S. C. (m) Doe Prior v. Salter, 3 Taunt. 485, (n) Doe Payne v. Grundy, 2 D. & R. 437; 1 B. & C. 284, S. C.: see Doe v. Ford, 2 Smith, 407. (0) Harr. L. & T. 865. (p) Hayward v. Giffard, 6 Dowl. 699; 4 M. & W. 194, S. C. (g) Doe Masters v. Grey, 10 B. & C. 615. the appearances and pleas, and for the lessor to be at liberty to sign judgment against the casual ejectors, unless the landlord would come in and defend as landlord for the premises in possession of his tenants, the two paupers; or (as A., the fandlord, was one of the parties served with the ejectment) that the lessor of the plaintiff might have obtained a consolidation rule, that the ejectments brought against the tenants should have abided the event of the verdict in the action against the landlord; taking care to have incorporated with such rule that A. (the landlord) should pay the costs of those ejectments brought against the tenants, in the event of such verdiet being in favour of the lessor of the plaintiff (r). In the same case A., (the landlord of the whole and tenant of part), instead of entering into the landlord's rule, obtained a rule for the consolidation of the three actions, and that the ejectment against his tenant B. should abide the event of the ejectment against his tenant C.; the ejectment was tried, and the lessor of the plaintiff obtained a judgment against C., and took possession of all the premises, and the court compelled A. (the landlord) to pay the costs of that ejectment; but the lessor of the plaintiff was compelled to pay his own costs of the application(s). And in Berkeley v. Dimery (t), Lord Tenterden said, “That in an ejectment the tenant in possession must be sued; and the court will not permit a person to put a mere pauper into possession merely to evade the costs." So, on the other hand, if a stranger carry on a suit in the name of another, who has title, and yet is so poor that he cannot pay the costs; in case he fail, the court, on affidavit of the circumstances, will order the person who carried on the suit to pay costs to the defendant (u). And see as to compelling security for costs in general, ante, 754, and post, Book IV. Part I. Ch. 11. 12. The Judgment. CHAP. I. SECT. 1. If a verdict have been given, let the prevailing party get the 12. The Judgrecord of Nisi Prius from the associate, and, in town causes, in- ment. dorse the postea on it, as directed Vol. I. 328 (v). If the verdict be not set aside, or the judgment arrested, within the time allowed for that purpose (x), then, if the verdict be for plaintiff, proceed to tax costs, as directed post, Book IV. Part I. Ch. 31, title "Costs," and sign final judgment, as directed Vol. I. 333. If the verdict be for the defendant, or plaintiff be nonsuit, costs are taxed upon the consent rule, as mentioned ante, 761 (y). (P) Thrustout v. Shenton, 10 B. & C. and ouster, Chit. Forms, 381; and of 110; 5 Man. & Ry. 443. (#) Ibid. (t) 10 B. & C. 113. n. () Runn. Eject. 417. judgment against casual ejector and writ (e) See the references to the forms, and judgment. &c, upon verdict for deinfra. (r) See Vol. I. 331. See also, upon this subject, Worral v. Bent, 2 Str. 835: Fisher v. Hughes, Id. 94: Morres v. Berry, Id. 1180: Farr v. Denn, 1 Burr. 362: Deckrow v. Jenkins, Cro. Car. 178: Taylor v. Wilbore, Cro. El. 763: Co. Lit. 285: England v. Slade, 4 T. R 683: Lindsey v. Clarke, 5 Mod. 285. See the form of posten, upon a nonsuit, for defendant's not confessing lease, entry, fendant, Id. 383, 385; of posted on verdict BOOK III. PART I. cate for im mediate Execution. It may be observed, that if the judge who tried the cause certifies only under the 11 G. 4 & 1 W. 4, c. 70, s. 38(z), that After Certifi- a writ of possession ought to issue immediately, and such writ be issued accordingly, the costs are taxed, and the judgment is, in general, signed and executed afterwards at the usual time, as if no such writ issued. The 1 W. 4, c. 7, however, (which, by sect. 5, does not destroy the above provision of the 11 G. 4 & 1 W. 4, c. 70), allows the judge who tried the cause to certify, on the back of the record, before the end of the sittings or assizes, that execution ought to issue forthwith, or at some future day, and subject or not to any qualification or condition; and if the judge certifies under this act, the costs may be taxed, and judgment signed forthwith; and execution may be issued forthwith or afterwards, according to the certificate, on any day in vacation or term; and the postea, with such certificate as a part thereof, must be entered of record as of the day on which the judgment was signed; but the party entitled to such judgment may, if he chooses, postpone signing it (a). 13. Error. Bail in. By whom, and when brought. What may be 13. Error. The proceedings upon a writ of error on a judgment in ejectment are the same (with one or two exceptions) as in other cases. Bail is required where the defendant brings a writ of error after verdict for the plaintiff (b); and the recognisance is taken for the amount of double the yearly value, and double the costs of the ejectment (c). The recognisance must be given, although the defendant has already put in and justified bail under 1 G. 4, c. 87 (d). Putting in and perfecting bail in error will discharge the recognisance given under 8. 3 (not to commit waste) (e). It is not necessary that the plaintiff in error should join in the recognisance; or, if he do, he cannot be examined as to his sufficiency (ƒ). As the casual ejector cannot bring error, being a mere nominal person, that writ can only be brought after the defendant has appeared and confessed lease, entry, and ouster (g); even if the landlord be permitted to defend, a writ of error cannot issue in the name of the casual ejector. But if a writ of error, coram nobis, is sued out in the name of the casual ejector, it must be taken to be sued out at the instance of a proper party, until it is set aside (h). And, on a writ of error from an inferior court, in the name of the casual ejector, the court will not order a nonpros to be entered, though his release of errors be shewn, because inferior courts are not competent to proceed by the consent rule (i). The death of the nominal plaintiff cannot be assigned for (2) Post, 765. (a) See Vol. I. 331. (b) 16 & 17 C. 2, c. 8, s. 3. (c) Keene Byron v. Deardon, 8 East, (e) 1 G. 4, c. 87, s. 3. (f) Keene v. Deardon, 8 East, 298. By the 6 G. 4, c. 96, s. 1, bail in error is now requisite in all personal actions, after judgment by default or on demurrer, as well as after verdict, unless the court or a judge will by special order dispense with the same; which they will not do unless substantial ground of error be shewn. (Wadsworth v. Gibson, 4 Bing. 572; 1 Moo. & P. 501, S. C.) But an ejectment, being a mired and not a personal action, does not, it seems, come within this enactment. (g) 2 Sellon, 205: George v. Wisdom, 2 Burr. 757. (h) Doe Faithful v. Roe, 7 Dowl. 718. (i) Runn. Eject. 421. CHAP. I. SECT. 1. error(); nor can a defendant in ejectment assign for error, that, being an infant, he appeared by attorney (j). And it seems that nothing can be assigned for error, that would make assigned for it necessary to go again into the title of the premises (k). The omission of the parish is not error(). Error. Execution. When the plaintiff obtains judgment, and the defendant Effect of, on brings a writ of error, the plaintiff cannot sue out execution until the writ of error be determined (m); provided bail in error be put in and perfected when necessary, within the time limited for that purpose. But where the defendant below, pending a writ of error brought by him, brought a new ejectment to recover the same premises, the court would not allow him to proceed in the new action until he quitted possession, or the tenants had attorned to the lessor of the plaintiff in the former action (n). Also, where a defendant brought a writ of Rule not to error, the court obliged him to enter into a rule not to commit commit waste pending the writ (o). Waste. and Damages Error. And, by the 16 & 17 Č. 2, c. 8, s. 4, if upon error brought the Remedy for judgment be affirmed, or the plaintiff discontinue or be non- Mesne Profits suit, the court from which execution should issue, shall award pending a writ to inquire as well of the mesne profits, as of the damages by any waste committed after the first judgment in the ejectment; and upon the return thereof, judgment shall be given and execution awarded for such mesne profits and damages, and also for costs of suit. The bail in error are also made liable for these mesne profits, damages, and costs; (Id. 8. 3); but no action can be brought for them against the bail, until their amount have been first ascertained upon a writ of inquiry, as above directed (p). 14. Execution. At what Time issued. Formerly, the execution could not, in any case, issue out 14. Execution. of this court until final judgment was obtained; but now, if the judge who tried the cause shall think fit to certify that Writ of Pospossession should be immediately obtained, a writ may issue ac- session may be cordingly. This is provided for by the 11 G. 4 & 1 W. 4, c. 70, 8. 38, which enacts, "that, when a verdict is given for plaintiff, or he is nonsuited for want of defendant's not confessing lease, entry, or ouster, the judge before whom the cause was tried may certify (9) his opinion on the back of the record, that a writ of possession ought to issue immediately, and, upon such certificate, a writ of possession (r) may be issued forthwith; and the costs may be taxed, and judgment signed and executed afterwards, at the usual time, as if no such writ had issued; provided that such writ, instead of reciting a recovery by judgment, in the form now in use, shall recite shortly that the cause came on for trial at Nisi Prius, at such a time and place, and before such a judge, (naming the time, place, and judge), and that thereupon the said judge certified his opinion, that a writ of possession ought to issue immediately." If the lessor (i) Moore v. Goodright, 2 Str. 899. (j) Ante, Vol. I. 350. See form of assignment of error in ejectment and joinder, 10 Went. 1, 3. (k) Wilkes v. Jorden, Hobart, 5. See Doe v. Gunning, 2 Nev. & P. 26. (m) Jones v. Edwards, 2 Str. 1241. (r) See form of writ, Chit. Forms, 391. |