the custom does not hold in the transversal line, but only in the lineal descent (t). Evidence of reputation of the custom of the manor, that, in default of sons, the eldest daughter, and in default of daughters, the eldest sister, and in case of the death of all, the descendants of the eldest daughter or sister respectively of the person last seised should take, is proper to be left to the jury of the existence of such a custom, as applied to a great nephew (the grandson of an eldest sister) of the person last seised; although the instances in which it was proved to have been put in use extended no further than those of eldest daughter and eldest sister, and the son of an eldest sister (u). On a question as to the existence of a custom in a particular manor, evidence of a like custom in an adjoining manor, though within the same parish and leet, is not admissible (x).

To an indenture of feoffment by the Bank of England, the seal of the bank was affixed by a paper, wafered to the indenture, on which was written, "Sealed by order of the Court of Directors of the Governor and Co. of the Bank J. K. Secretary" it was held, that J. K. was not an attesting witness, and that the execution of the feoffment might be proved by the seal, without calling J. K. (y); but the seal should, it seems, be proved to be the seal of the corporation (z).

For the Defendant.-If the defendant prove a title out of the plaintiff, it is sufficient, though he have not any title himself: but he ought to prove a subsisting title; for producing an ancient lease for 1000 years will not be sufficient, unless he likewise prove possession, under such lease, within twenty years (a). So if the defendant produce a mortgage deed, where the interest has not been paid, and the mortgagee never entered, it will not be sufficient to defeat the plaintiff, who claims under the mortgagor; because it will be presumed that the money was paid at the day, and consequently, that it is not a subsisting title; but if the defendant prove interest paid upon such mortgage, after the time of redemption, and within twenty years (see ante, p. 733), it will be sufficient to nonsuit the plaintiff (b). And the rule is the same if the plaintiff prove the title out of himself. Doe v. Barnard, ante, p. 748. No less time than twenty years will raise a presumption that a mortgage term has been assigned or surrendered; although the defendant does not prove that interest continues to be paid (c). Note, that in this case the defendant had possession of the mortgage deed.

The defendant produced a mortgage for years, by deed, from the plaintiff's ancestor, upon which was an indorsement in hæc verba, "Received of M. O. 500l. on the within recited mortgage, and all interest due to this day; and I do hereby release to the said M. O., and discharge the mortgaged premises from the said term of 500 years." On a case reserved, the court held, that these words amounted to a surrender of the term; and that such surrender might be by note in writing, without deed, by the Statute of Frauds, 29 Car. II. c. 3, s. 3 (d). By 8 & 9 Vict. c. 106, s. 3, a surrender in writing of an interest in any hereditaments not being copyhold, "and not being an interest which might by law have been created without writing," shall be void, unless made by deed. The Statute of Frauds excepted surrenders by act or operation of law, which, therefore, being valid, though not made by note in writing" within that act, need not now be made by deed. Any instrument in writing used as evidence of a surrender must be duly stamped (under 13 & 14 Vict. c. 97.) Williams v. Sawyer, 3 B. & B. 70. Such an indorsement as the above, however, would, without a stamp, be evidence of the satisfaction of the term within the 8 & 9 Vict. c. 112, and, therefore, the defendant relying on possession only (see the facts stated 2 Wils. 26), would entitle the plaintiff to a verdict, as the law stands at present. Doe v. Mousdale, 16 M. & W. 689.

XI. Verdict-Judgment, &c.

Verdict. By sect. 180 of the Common Law Procedure Act, 1852, the question at the trial is, whether the statement in the writ of the title of the claimants is true or false; and if true, then which of the claimants is entitled, and whether to the whole or part, and if to part, then to which part of the property in question," and the verdict is to be entered accordingly. In cases of joint tenants, tenants in common and coparceners, the additional question, of whether an actual ouster has taken place, shall be tried. Sect. 188.

Previous to the above act, in an ejectment for a messuage, where it was found that a small part of the house was built, by encroachment, upon the land of the plaintiff, and not the residue, yet the plaintiff recovered for that parcel by the name of a messuage (e). So where the declaration was of a fourth part of a fifth part; and the title of the plaintiff was only to one-third of one-fourth of onefifth, being only one-third of what was declared for; and it was said, that the plaintiff could not have a verdict, because the verdict ought to agree with the declaration. But per Cur., the verdict may be taken according to the title (f). So where the declaration (d) Farmer v. Rogers, Bull. N. P. 110. (f) Ablett v. Skinner, 1 Sidf. 229. (e) Roll. 2 Abr. 704, pl. 22.

was for a moiety of land; and the question was, whether the plaintiff could recover a third part, per Lord Mansfield, C. J.,-"The plaintiff shall recover according to his title, and it is not any objection to his recovering what he has really a title to, that he has demanded more, though the reverse, indeed, will not hold, viz., that if he demands less, he shall, nevertheless, be entitled to recover more" (g). So if an ejectment be brought for 100 acres, plaintiff may recover 40. If the jury find for the plaintiff for part, they should find as to the residue for the defendant. Doe v. Ellis, 13 M. & W. 241. As between landlord and tenant, the jury may also find a verdict for the amount of the damages for mesne profits down to the day of trial or some previous day; Common Law Procedure Act, 1852, s. 214, post, p. 761; but this is at the option of the landlord, who may exercise such option at the trial, although the writ and issue do not contain any claim in respect of them. Smith v. Tett, 9 Exch. 307. It is not necessary for him, in such case, to prove due notice of trial. Thompson v. Hodgson, 12 A. & E. 135.

If the title of the claimant appear to have existed as alleged in the writ, and at the time of service thereof, but has expired before trial, the claimant is entitled to a verdict accordingly, and to a judgment for his costs of suit. Common Law Procedure Act, 1852, s. 181. If the defendant appears and the claimant does not appear, the claimant shall be nonsuited. If the claimant appears and the defendant does not appear, the claimant shall be entitled to recover as heretofore without any proof of his title. Sect. 183. By 114 R. G., H. T. 1853-If the plaintiff appears and the defendant does not appear, the defendant shall be taken to have admitted the plaintiff's title, and the verdict shall be entered for the plaintiff without producing any evidence, and the plaintiff shall have judgment for his costs as in other cases. By 30 Pl. R., T. T. 1853-If the plaintiff appear and the defendant does not appear, the plaintiff shall be entitled to a verdict without producing any evidence, and shall have judgment for costs as in other cases.

be

Judgment.-Upon a finding for the claimant, judgment may signed and execution issue for the recovery of the possession of the property, or such part thereof, as the jury shall find the claimant entitled to, and for costs, within such time not exceeding the fifth day in term after the verdict, as the court or judge before whom the cause is tried shall order; and if no such order be made, then, on the fifth day in term after the verdict, or within fourteen days after such verdict, whichever shall first happen. Sect. 185. Upon

(g) Denn v. Purvis, 1 Burr. 326, and MS.; see Comb. 101.

(h) Guy v. Rand, Cro. Eliz. 12. See

Meredith v. Rand, Dyer, 115, b., pl. 67, in

marg.

a finding for the defendants, or any of them, judgment may be signed and execution issue for costs against the claimants named in the writ, within such time, &c. (as in the preceding section). If the plaintiff be nonsuited, the defendant shall be entitled to judgment for his costs of suit, 29 Pl. R., T. T. 1853. If the defendant wishes to move for a new trial, he should apply to the judge for an order to stay judgment and execution until the fifth day of next term (i). When a landlord obtains a verdict against a tenant who has found security for costs and damages under sect. 213, the judgment cannot be stayed by order of the judge, unless the verdict be, in the opinion of the judge, contrary to evidence, or the damages excessive, or by consent, or except the defendant shall find security not to commit waste, sell standing crops, &c. Sect. 215.

The court will make every possible intendment to support the judgment. A bare possibility of title, consistent with the judgment, will be sufficient (k).

Execution.-It was formerly the practice for the plaintiff to indemnify the sheriff), but the sheriff could not demand it (m), and it is not now usual (n). The sheriff delivers possession at the showing of the plaintiff, who is, at his peril, to take possession of no more than he is entitled to (0). If the plaintiff take out execution for more than the recovery warrants, the court will interpose in a summary way, and restore the tenant to the possession of such part as was not recovered (p). By the 221st section of the C. L. P. Act, 1852, the equitable jurisdiction theretofore exercised by the court over actions of ejectment, "so as to ensure a trial of the title and of actual ouster when necessary, only, and for all other purposes for which such jurisdiction may at present be exercised," is expressly preserved, and the statutes not inconsistent with the act are to remain in force and be applied thereto. If the execution be for twenty acres, the sheriff must give possession of twenty acres, according to the estimation of the county where the lands lie (q). It is at the election of the plaintiff whether the sheriff shall return the writ of hab. fac. poss. or not (r). But the sheriff is bound to execute the writ when he is required to do it, and nothing occurs to prevent him: and where, in taxing costs, the master disallowed certain expenses, on the ground that the writ was not executed; it was held, that the costs which were disallowed through the sheriff's default in not executing the writ might be recovered in an action on the case against the sheriff (s). The

(i) Cole on Ejectment, 336.

(k) Morres v. Barry, 2 Str. 1180; Roe

v. Power, 2 N. R. 1.

(1) Gilb. Eject. 110.

(m) See Mason v. Paynter.

(n) Cole on Ejectment, 345.

(0) Connor v. West, 5 Burr. 2673.
(p) 1 Burr. 629; per Lord Mansfield,
C. J., Doe v. Dawson, 3 Wils. 49.

(q) 1 Roll. Abr. 886, (H.) pl. 4.
(r) Molineux v. Fulgam, Palm. 289.
(s) Mason v. Paynter, 1 Q. B. 974.

court will not oblige the sheriff to return it, except at the instance of the plaintiff. But, after possession has been given under the writ, the plaintiff cannot sue out another writ, although he is disturbed by the same defendant, and though the sheriff have not returned the former writ; for an alias cannot issue after a writ is executed; if it could, the plaintiff, by omitting to call on the sheriff to make his return to the writ, might retain the right of suing out a new hab. fac. poss., as a remedy for any trespass which the same tenant might commit within twenty years next after the date of the judgment (t). But he may in such a case apply to the court for a rule for a fresh writ (u). A writ of possession is not necessary, if the defendant acquiesces in the judgment, and goes out of his own accord; Wilkinson v. Kirby, 15 C. B. 430; per Parke, B., 11 Exch. 32.

Costs. The court will, in the exercise of their equitable jurisdiction (ante, p. 758), compel the real defendant to pay the costs, although he is not a party to the record (x); but it must be shown that the defence was conducted for his benefit, and it is not enough to show that he is interested, as an equitable mortgagee of part of the premises, and that he has endeavoured to make terms with the plaintiff since the judgment. Anstey v. Edwards, 16 C. B. 212. Where three ejectments were brought against a landlord and his two tenants, and the landlord obtained a rule for the consolidation of the three actions, and that the ejectment against one of the tenants (a pauper) should abide the event of the ejectment against the other, and that action was tried, and the plaintiff' obtained judgment, and took possession of all the three tenements, the court compelled the landlord to pay the costs of that ejectment (y).

XII. Error.

By the C. L. P. Act, 1852, s. 208 (z), error may be brought after a special verdict, bill of exceptions, or by consent after a special case (a), but execution shall not be thereby stayed, unless the plaintiff in error shall within four days of lodging the memorandum of error, or after judgment, or before execution, be bound to the claimant in double the yearly value of the property, and double the costs recovered, on condition to pay such costs, damages, and sums of money, as shall be awarded, upon or after

(1) Doe v. Roe, 1 Taunt. 55; but see Kingsdale v. Mann, 1 Salk. 321.

(u) Doe v. Roe, 2 D. N. S. 407.

(x) Doe v. Gray, 10 B. & C. 615; Hutchinson v. Greenwood, 4 E. & B. 324,

acc.

(y) Thrustout v. Shenton, 10 B. & C. 110.

(z) This is substantially a re-enactment of 16 & 17 Car. II. c. 8, s. 3.

(a) By the Com. Law Proc. Act, 1854, s. 32, error may be brought upon a special case in the same manner as upon a special verdict, unless the parties agree to the contrary.