been regularly fued out in the life-time of the teftator, the sheriff may execute it after his death; because the authority is from the Court, and not from the party. Cro. Car. 295. If after judgment and before execution, the defendant in 2Sell. Pract. 204. ejectment dies, and a fcire facias goes, it must be against the 312. terre-tenants of the land (and the heir may come in as terre-tenant,) and not against the executor, without naming him terre-tenant, Of the Writ of Error. By the confent rule, as has been before obferved, the de- Run. Eject.204, fendant undertakes to appear and receive a declaration: the neceffity, therefore, of an original writ, if the proceedings are in the Common Pleas, is fuperfeded; 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 muft file an original, unless it be after verdict, when it is helped by ftat. 38 Eliz. c. 14. As in the Common Pleas there is no need of an original, Ibid. (which alfo is the cafe in the King's Bench when the proceedings are by original,) fo in the King's Bench, when the proceedings are by bill, there is no neceffity for a latitat, or bill of ejectment: but the party muft file bail before he can proceed. He must also file a bill of ejectment befides the plea roll, 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; therefore, by the rule, bail is ordered to be filed, that the Court may have authority to proceed. 2 Bur. 757. The cafual ejector cannot bring error, being a mere no. 2 Sell.Pract. 205. minal perfon; that writ therefore can only be brought after the defendant has appeared, and confeffed leafe, entry, and oufter. . So, if the landlord be permitted to defend, a writ of Ibid. error cannot iffue in the name of the cafual ejector. But on a writ of error from an inferior Court, in the Run.Eje&t. 421. name of the cafual ejector, the Court will not order a non pros. to be entered, though his release of errors be fhewn; because Ibid. 3 Bur. 1823. 4 Bur. 2501. Hob. 5. because inferior Courts are not competent to proceed, as before observed, by a rule confeffing leafe, &c. So, if an infant be tenant in poffeffion, and judgment be against the cafual ejector; because no laches is imputable to an infant. The plaintiff having brought a writ of error in Parliament, the Court obliged him to enter into a rule not to commit waste or deftruction during the pendency of the writ. The defendant did not oppose it; and also justified (to 400%.) By flat. 16 17 C. 2. c.8. s.7. it is enacted, That no execution fhall be ftayed by writ of error upon any judgment after verdict in ejectment, unless the plaintiff in error shall become bound in a reasonable fum to pay the plaintiff in ejectment all fuch cofts, damages, and fums of money, as fhall be awarded to fuch plaintiff upon judgment being affirmed, or on a nonfuit, or difcontinuance had; and in cafe of affirmance, difcontinuance, or nonfuit, the Court may issue a writ to enquire as well of the mefne profits, as of the damages by any wafte committed after the first judgment, and are therefore to give judgment, and award execution for the fame, and alfo for cofts of fuit. This" reasonable fum" is generally double the rent. Under this ftatute the defendant is intitled by law to his writ of error, if he offers to become bound as the ftatute directs. Therefore, where the leffor of the plaintiff fwore that the defendant was infolvent, and also that he, the leffor, had a mortgage upon the land to more than it was worth, yet the Court held that the defendant was entitled to his writ of error, he becoming bound in double the rent. Nothing fhall be affigned for error that will make it neceffary to go again into the title of the premiffes. Of the Action of Ejectment where the Poffeffion is vacant:- If the premiffes, the poffeffion of which the plaintiff Run. Eject.148. feeks to recover, be empty, no declaration of course can be delivered or affidavit made of the delivery of it, and confequently the Court cannot proceed to give judgment against the casual ejector.-In such case therefore the old 2Sell.Pract.213, way of proceeding must be still pursued, except in the fingle inftance of landlord and tenant, provided for by ftat, 4G. 2. of which hereafter. This is done by entering on, the premiffes, and actually fealing a leafe thereon, either in perfon or by attorney. If the former method is preferred, the proceeding is thus: Ibid. A. (the perfon claiming title,) muft go upon the land before the effoin day of the Term, and there feal and deliver a lease to B. (any friend of his, as tenant;) and at the fame time deliver him poffeffion. This being done, get C. (any other friend) to go upon the premiffes, and turn out B. the tenant, by thrufting him off the premiffes, and whilft he continues there ferve him with a declaration in ejectment, in which make B. the tenant the plaintiff, A. (the perfon claiming title) the leffor, and C. (the actual ejector) the defendant, and declare on the demife in the leafe and fub fcribe a notice to appear. The declaration is the fame as ufual, only the real per- Ibid. 214. fons are made parties, instead of fictitious names. In order to get judgment in the Court of King's Bench, Ibid. an affidavit muft be made of fealing the leafe, and of the oufter by defendant, and of all the facts. This is indorfed to move for judgment against the cafual ejector, and unless defendant appear and enter into the common rule, judgment may be figned as on a common ejectment. In the Common Pleas, there is no need of any affidavit, nor any motion for judgment, but on the firft day of Term, give a rule to plead as in common actions, and if no appearance and plea, at the expiration of the rule, fign judgment. If the landlord, or perfon claiming title, does not wish Ibid. to enter himself and feal the leafe, he may do it by attorney, and the proceedings are juft the fame; the attorney acting as the principal landlord. To warrant the above proceedings, the premiffes must be vacant; they must be wholly deferted by the tenant, and 2 Str. 1064. Bull. N. P. 95. Imp. Pract. K. B. 537. the leffor of the plaintiff not be able to find out where the tenant is to serve him with an ejectment, Therefore, where the leffee of a public houfe took another and removed his goods and family, but left beer in the cellar and rent being in arrear, the landlord fealed a leafe as on a vacant poffeffion, delivered an ejectment, and figned judgment, which was fet afide, the leffee ftill continuing in poffeffion; and a cafe was mentioned, where leaving hay in a barn at Hendon was held to be keeping poffeffion. It further appeared in this cafe, that the attorney for the plaintiff knew whither the leffee removed, and might have served him perfonally, which could not be done upon the premiffes. So in the cafe of a renting ground, to which there is no house or barn, if it be known where the tenant lives, he muft be ferved. In cafes of a vacant poffeffion, no perfon claiming title will be let in by the Courts to defend, but he that can first feal a leafe on the premiffes must obtain poffeffion. The perfon therefore claiming title muft refort to his new ejectment. But it is faid that any perfon claiming title to the premiffes, and who is usually admitted by the Court, may with lease appear and enter into the common rule upon motion made for that purpose. But quare now? Ejectment by a When a corporation is leffor of the plaintiff, they should Corporation. regularly execute a letter of attorney authorizing fome perfon to enter and feal a leafe on the land: and a corporation cannot make an attorney or bailiff but by deed, nor appear but by making a proper perfon their attorney by deed. Run. Eject.150. Hid As to whether the leafe on which they declare need be. by deed, it seems immaterial: for where the declaration ftated the leafe to have been made to the plaintiff under the common feal of the corporation, it was objected that the lease ought to be proved; but the objection was over-ruled by Lord Kenyon, who obferved that, by the common rule and appearance, the leafe was admitted to be as ftated. If a corporation be aggregate of many, they may set forth the demife in the declaration without mentioning the Christian names of those who compofe it; but if the corporation be fole, the name of baptifm must be inferted; as if the demife be by a bishop. Where Court. Where the proceedings are in an inferior Court, the Proceedings in plaintiff muft proceed by actually fealing a leafe on the pre- an inferior miffes, and the defendant tries the title in the name of the Run.Eject. 151, cafual ejector, to fave expence: for inferior Courts are not 152. competent to make rules to confefs leafe, entry and oufter, and if they were, have no power to enforce obedience to them. It feems, therefore, 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 course of the superior Court. J If an habeas corpus be brought to remove a cause in eject. lbid. 151. ment out of an inferior Court, the lands lying within their jurifdiction, and the leffor of the plaintiff seal a lease on the premiffes, the Courts above will grant a procedendo; because the title to the land is local, and therefore properly within the jurifdiction of the Court below, where, if it proceed regularly, it will not be prohibited: but if the leffor has not fealed a leafe on the premiffes, the Courts above will not grant a procedendo. So, if an ejectment be commenced in an inferior Court, Ibid. and an habeas corpus be brought to remove it, and the plaintiff in ejectment declares against the cafual ejector; there may be a rule to confefs leafe, &c. as if he had originally declared in the Court above, and the Court will not grant a procedendo. C. If the lands lie partly within the cinque ports, and partly Ibid. 152. without, the defendant cannot plead the jurifdiction of the cinque ports, above; for though the land be local, yet the demife is tranfitory, and triable any where: and therefore though the plaintiff may lay his action for that which lieswithin an inferior jurifdiction in the Court below, if he take proper measures for the purpose, yet if he will proceed in a fuperior Court, as the demife is tranfitory, the defendant cannot ftop his proceeding, because those Courts have competent jurifdiction. SECTION III. Of the Action for Mefne Profits. An ejectment being a feigned action, brought against a Run.Eject. 438. Dd 2 nominal |