William Tidd.

The practice of the Courts of King's Bench and Common Pleas, in personal actions, and ejectment : to which are added, the law and practice of extents, and the rules of court, and modern decisions, in the Exchequer of pleas (Volume 2) online

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Online LibraryWilliam TiddThe practice of the Courts of King's Bench and Common Pleas, in personal actions, and ejectment : to which are added, the law and practice of extents, and the rules of court, and modern decisions, in the Exchequer of pleas (Volume 2) → online text (page 47 of 111)
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Dowl. & Eyl. 285, S. C.

[a] In actions ex delicto against several defendants, if they plead severally, and all prevail
against the plaintiff, each defendant is entitled to costs. ALitcr, if they join in their pleas.
Crosly V. Looejoy, 6 N. H. 458. And where a verdict is found in favour of either defendant,
he is entitled to costs in such case. Galloway v. Pitman, 3 Mass. 408. Trapp v. 3I'-Kinzie,
2 N. & M. 511. Hidaz v. Gilmore, 3 Blackf 49. Where some of the defendants prevail and
others are found guilty, the former will recover several costs for travel, attendance and
attorney's fee; but for witnesses' fees, depositions, &c., which are jointly incurred, they
vrill have single costs only, to be taxed wholly in either of their bills, or distributively ac-
cording to the advances made therefor by each. Mason v. Waite, 1 Pick. 452. Stockshill v.
Shujford, 1 Murph. 39. Durghton v. Leighton, 10 Mass. 56. And whether defendants in
actions of tort, plead jointly or severally, if some are found guilty and others are ac-
quitted, those who are acquitted are entitled to costs, as a verdict severs defendants in such
case as effectually as several pleading would. Brown v. Stearns, 13 Mass. 536. Griswold
V. Sedgwick, 3 Wend. 326. Vanfield v, Gaylord, 12 Wend. 236. S. P. If separate suits are
brought against several joint tiespassers, the plaintiff maj have costs against each defendant,
though he can have but one satisfaction. Livin/jision y. Bishop, 1 Johns. 290. Knickerbocker
V. Colver, 8 Cow. 3. And where several defendants in an action of tort, who had pleaded
jointly in the Common Pleas, pleaded severally in the Supreme Court, and filed a joint speci-
fication of defence, it was held upon a nonsuit of the plaintiffs, that the defendants were
entitled only to joint costs in the common pleas, but to several costs for travel and attend-
ance in the supreme court, and also that an aliquot part of the costs for witnesses, court-
dues, &c., might be taxed for each defendant, or that those items might be otherwise so dis-
tributed that taking the ti together, the plaintiffs should be charged no more than if the
defendants had recovered only joint costs. Uales v. Stone, 9 Met. 316. In tort against two
defendants, a verdict was rendered against one carrying costs, but the other was acquitted,
Held, that he was entitled to full costs against the plaintiff. Albany Railroad v. Cady, 6
Hill, 265. Tenbrock v. Paige, 6 Hill, 267. Anon. 6 Hill, 268. S. P. Where, in a joint action
of ejectment by five plaintiffs who claim the whole of the premises in question, three recover
judgment for a part of the premises and two fail in maintaining their action, the parties suc-
ceeding are entitled to a full bill of costs, deducting such charges as exclusively relate to
the two plaintiffs who have been defeated. Heriman v. Booth, 20 Wend. 666. Where two
defendants appear by different attorneys, and each moves for a nonsuit, but one bill of
costs will be allowed. Trowbridge v. Sharp, 4 Hill, 38. Jojies v. Williams, 4 Hill, 34. And
although the defendants in an action of trespass, sever in their pleas, yet, where there is but
one judgment in their favour, they shall recover but one set of costs. M'-Namara v. Kerns, 2
Iredell, 66.

Where in trespass, two defendants severed in their pleas, and the jury on the first count in
the declaration, found one guilty and the other not guilty, aud found both guilty on the second
count, and assessed several damages, both defendants were charged with full costs. Kempon
V. Cook, 4 Pick. 305. Proprietors of Kennebec Purchase \. Boulton, 4 Mass. 421. Ewer y.
Beard, 3 Pick. 64. S. P. In South Carolina, when a verdict is found for one of two joint de-
fendants, he is entitled to costs. But where their costs have been joint, as a joint plea, &c.,
he is entitled to half cost only. If he has incurred a particular expense, as if a witness has
been examined by commission for him alone, he has full costs for such items, i/' Clure v.


was brought against several defendants, who defended severally, and at the
assizes one of them confessed lease, entry and ouster, and liad a verdict
against him, but the others did not confess; the court upon application said,
the officer must tax the same costs against all the defendants ; and that if
the plaintiff, after he had satisfaction against one, should take out execution
against another, the latter might apply to the court. (w)

When one of several defendants lets judgment go by default, and the
other ]>lea(ls a [)lea which goes to the whole declaration, and shows
that *the plaintiff had no cause of action, if this plea be found for [ *986 ]
the defendant who pleaded it, he shall have costs ; and being an
absolute bar, the other defendant shall have the benefit of it, and not pay
costs to the plaintifi":(«) But when the plea does not go to the whole, but
is merely in discharge of the party pleading it, there the other party shall
not have the benefit of it ; but shall pay costs, though it be found against
the plaint ifl".(J)

Before the statute 8 & 9 W. III. c. 11, if one of several defendants had
been acquitted, he was not entitled to his costs ; the courts construing the
former acts to relate only to the case of a total acquittal of all the defend-
ants.(c) This being found inconvenient, it was enacted by the above
statute, § 1, that "where several persons shall be made defendants to any
action of trespass, assault, false imprisonment, or ejectione Jirma', and any
one or more of them shall be, upon the trial thereof, acquitted by verdict,
every person so acquitted shall recover his costs of suit, in like manner as
if the verdict had been given against the plaintiff, and acquitted all the
defendants ; unless the judge, before whom the cause is tried, shall immedi-
ately after the trial thereof, in open court, certify upon the record under
his hand, that there was a reasonable cause for making such person a de-
fendant." This statute is confined to the particular actions mentioned
therein ; and does not extend to an action of trespass upon the case,{dd)
nor consequently to an action of trover :[e) neither does it extend to an
action of replevin ;{f) nor to an action of debt on bond against executors,
one of whom is acquitted on the plea oi plene admiiiistravit ])ra>ter.{f/) On
a joint plea of not guilty to trespass and assault, if one defendant be found
guilty, with one shilling damages and one shilling costs, and the other ac-
quitted, the latter is only entitled to forty shillings costs. (A)

When a feigned issue is ordered by a coui't of law, whether it be in a

(;n) Bui. Ni. Pri. 335, G. Ad. Eject. 2 Ed. 206, 7.

(a) Co. Lit. 125. Cro. Jac. 134. 1 Lev. 63. 1 Sid. 76. 1 Keb. 284. S. C. 2 Ld. Ravm.
1372. 1 Str. GIO. 8 Mod. 217. S. C. Cas. ?r. C. P. 107. Pr. Reg. 102. S. C. 2 H. Blue.
28. 2 Chit. Rep. 153.

(h) Slime cfx.'^es; 1 Wils. 89. 3 Diimf. & East, 656. 2 Chit. Rep. 153.

(f) 2 Str. 1005; and see 1 Salk. 194. (dd) 2 Str. 1005.

((•) Barnes, 139.

(/) 3 Bur. 1284. 1 Blac. Rc'p. 355. Say. Costs, 215, S. C.

((f) Duke nf Norfolk y. Anthony ^ another, E. 42 Geo. IIL K. B.

(A) 2 Maule & Sel. 172 ; and see 4 Barn. & Aid. 43, 700.

Sutherland, 4 M'Cord, 158. And in New York, when an action ex contractu is brought
against several defendants, some of whom succeed and others have a verdict against them,
the former do not recover costs. Avery v. Curtu, 3 Cow. 369. And when a nol. pros, is en-
tered as to one of several defendants, and costs are refused liim, a mandamus will not be
granted to compel an allowance of costs to him. Exparte Nelson, 1 Cow. 417. In the
same kind of action against several defendants on a joint contract, though they plead
severally and all prevailed, yet several costs shall not be ta.\ed. Meagher v. Batchelder, 6
Mass. 444. Ward \. Johnson, 13 Alass. 148.



civil or criminal proceeding, the costs always follow tlie verdict, and must
be paid to tlic party obtaining it.(/) But when a feigned issue is ordered
by a court of equity, the costs do not follow the verdict, as a matter of
course; but the finding of the jury is returned back to the court which
ordered the issue, and tlie costs there are in the discretion of the
[ *987 ] court.{i) *When the issue is ordered by a court of law, on a rule
for an information, (a) or a motion for an attachment, (Z») the costs
of the original rule or motion do not in general follow the verdict, but only
the costs of the feigned issue ; which costs are to be reckoned from the time
when the feigned issue was first ordered and agreed to.(c') Yet, where it
was ordered by the consent rule, that the costs should abide the event of
the issue, the court directed the ivliole costs to be paid under it.(<:7)

Having thus shown, in what cases the parties are entitled to costs, I shall
proceed to consider, what costs they are respectively entitled to ; with the
means of taxing and recovering them, as betAveen party and party.

When the plaintiff recovers single damages, he is only entitled to single
costs, unless more be expressly given him by statute : And single damages
only are recoverable, in an action against a tenant, to recover the value of
three years' improved rent of the premises, for secreting an ejectment, on
the statute 11 Geo. II. c. 19, § 12. (ee) But if double or treble damages are
given by a statute, subsequent to the statute of Cfloueester, in a case wherein
single damages were before recoverable, the plaintiiF is entitled to double or
ti'eble costs, although the statute be silent respecting them ;{ff) as in an
action upon the 2 Hen. IV. c. ll,{gg) &c. So, treble costs are recoverable
by the plaintiff, in an action on the case for treble damages, against the
sheriff, on the statute 29 Eliz. c. 4, for extortion. (AA) But the avowant in
replevin, on a distress for poor rates, is only entitled to single costs, under
the statute 43 Eliz. c. 2, § l9.(^V) And where, on a declaration in trespass,
consisting of six counts, two of which were for a forcible entry on the
statute 8 Hen. VI. c. 9, § 6, and the rest at common law, judgment having
gone by default, the plaintiff obtained general damages on a writ of inquiry,
and sixpence costs ; the court held, that he was not entitled to treble costs
on all the counts of the declaration, but could only enter his judgment on
the counts at common law, with single costs. (7^;) In some cases, double or
treble costs are expressly given to the plaintiff ; as upon the game laws, by
the statute 2 Geo. III. c. 19, § 5 ; And whenever a plaintiff is entitled to
double or treble costs, the costs given by the court de incremento are to be

(i) Still ^ Rogers, 1 Lil. Pr. MA, per Holt, Ch. J. Barnes, 130. 1 Wils. 261, 331. Say.
Rep. 24. 1 Wils. 324, S. C. ; and see Burt. Prac. Excheq. 248, 9. Peake's Cas. Ni. Pri. 3
Ed. 100, 270. 7 Taunt. 31. 2 Marsh. 355, S. C. But in the case of Iloskins v. Ld. Berke-
ley, (4 Durnf. & East, 402,) the court strongly intimated an opinion, that as feigned issues
were only granted with the leave of the court, it would be prudent in future, when they
permitted such issues to be tried, to compel the parties to consent, that the costs should be
in the discretion of the court.

(a) Say. Rep. 229. 1 Bur. G03. Say. Costs, 144, S. C.

[b) Say. Rep. 253. (c) 1 Bur. 604. 2 Ken. 292, S. 0.
[d) 2 Bur. 1021 ; and see 3 Maule k Sel. 323. (ee) 2 Barn. & Aid. 662, (a).

iff) Say. Costs, 228; and see Hul. Costs, 2 Ed. 17, 479, &c.

{gg) Ante, 893, 4; 945.

(M) 2 Barn. & Aid. 393. 1 Chit. Rep. 137, S. C. And for the judgment in this case, see
Append. Chap. XXII. | 90.

(») 4 Moore, 296. 1 Brod. & Bing. 517, S. C ; and see the case of Hempson v.Josselyn &
others, 4 Moore, 297, (b).

(k) 2 Moore, 238. Ante, 893, 4.


doubled or trebled, as well as those given by tlie jury.(/) But dou])le or
treble costs are not to be understood to mean, according to their literal
import, twice or thrice the amount of single costs. When a statute gives
double costs, the true mode of estimating them is, first to allow the phiintiff
or defendant the single costs, including tlie expenses of *witnesscs,
counsel's fees, &-c., and then to allow him one half the amount of [ *988 ]
the single costs, without making any deduction on account of
hose expenses. (rt) If treble costs are given, they are calculated thus : 1,
the common costs : 2, half of these ; and then half of the latter. (i)

Double or treble costs arc also in some cases expressly given to the
defendant ; as, in actions against justices of the peace, constables, &c., by
the 7 Jac. I. c. 5,(t') (made perpetual by the 21 Jac. I. c. 12, § 2 ;) for dis-
tresses for rents and services, by the 11 Geo. II. c. 19, § 21, 2 •,{d) where
the plaintiff recovers less than 40.s. damages, by the 23 Geo. II. c. 33, §
19;(<^) on the building act, 14 Geo. III. c. 78, § 100 ;(/) against officers of
the excise or customs, by the 23 Geo. III. c. 70, § 34. 28 Geo. III. c. 37,
23, and Geo. IV. c. 108, § 97, or officers of the army, navy, or marines,
by the last-mentioned statute ; against persons holding public employments,
&c., and having power to commit to safe custody, by the 42 Geo. III. c. 85,
§ 6 ; against any person or persons, for any thing done in pursuance of the
act for consolidating the provisions of the acts relating to tlie duties under
the management of the commissioners for the affairs of taxes, or any act for
granting duties to be assessed under the regulations of that act,(^(/) or of the
act to amend the laws relating to bankrupts, (7<) or for consolidating and
amending the laws relative to jurors, and juries ;(?') in replevin, on a distress
for rates made by commissioners on plaintiff's lands, under the statute 50
Geo. III. c. xlvii. •,{k]i-) and in actions on the mutiny act,(Z^) or for non-resi-
dence.(?«) Also, under the Birmingham paving act, (52 Geo. III. c. 113,)
some of several defendants, in whose favour a verdict has been given, are
entitled to treble costs, though the verdict may have gone against others.(«)
And, by the statute 1 Geo. IV. c. 87, § 6, " in all cases wTierein the land-
lord shall elect to proceed in ejectment, under the provisions of that act,
and the tenant shall have found bail as ordered by the court, if the land-
lord upon the trial of the cause shall be nonsuited, or a verdict jDass against
him upon the merits of the case, there shall be judgment against him, with
double costs."

In the foregoing and similar cases, where it does not appear, on the face

(7) 2 Leon. 52. Cro. Eliz. 582. 3 Lev. 3.51. Carth. 297, 321. 1 Salk. 205. 1 Ld. Raym.
Ui, S. C. 2 Sir. 1048; but see 1 Durnf. & East, 252.

(a) 4 Ham. & Cres. 889. V Dowl. & RyL 484, S. C.

(/>) Table of Costs, m»n/iCi>to. 1 Chit. Rep. 137, (a). 4 Bam. & Ores. 154. C Dowl. &
Ryl. 1, S. C.

(c) This statute does not extend to actions for a mere non-feazance, but only where some-
thing is done by the ofliccrs. 2 Lev. 250. 3 East, 92. And accordingly, parish officers, or
persons acting on their behalf, are not entitled under this statute to double cosU, upon a
judgment as in case of a nonsuit, in an action brought against thcni, for the price of good?
sold and delivered to them for the use of the poor. 3 Maule & Sel. 131.

(d) For determinations on this statute, vide ante, 977.

(e) 4 .Maule k .Sel. 171. (/) 9 East, 322. C Dowl. & Ryl. 481.
(ff) 43 Geo. IlL c. 99, § 70. (/)) Geo. IV. c. IG, g 44.

It) G Geo. IV. c. 50, g 58. (kk) 6 Maule & Sel. 128.

(//) 5 Taunt. 820. 1 Marsh. 382. S. C. 3 Maule & Sel 591 ; and see slat. 3 Geo. IV. c.
13, g 149. 7 & 8 Geo. IV. c. 4, § 155. 9 Geo. IV. c. 4, ? 155.
(m) 57 Geo. IIL c. 99, | 45. (h) 2 I5ing. 267.


of the record, that the defendant is entitled to the benefit of the
[ *089 ] act, *(as wlicrc he pleads the general issue,) and there is no parti-
cular mode appointed for recovery of the costs, the proper mode,
after a nonsuit or verdict for the defendant, is to apply to the court, upon
an affidavit of the facts, for leave to enter a suggestion on the roll;(a^
which suggestion should be entered before the entry of final judgment :{b)
And it cannot be done by rule of court,(c) unless where the plaintijBT moves
for leave to discontinue, on payment of costs ; in which case, the court may
make it part of the rule, that he shall pay double or treble costs.{d) But
when the facts entitling the plaintiff to double or treble costs, appear on
the face of the record by pleading, or on a special verdict,(e) &c. a sug-
gestion is unnecessary : And if a particular mode be appointed by statute,
for the recovery of double or treble costs, as by the certificate of the judge
who tried the cause, on the 7 Jac. I. c. 5, there that particular mode must
be observed :(/) so that if the judge certify, there is no need of a sugges-
tion : and if he do not, it is of no avail, except where judgment goes by
default. (^) When a defendant is entitled to treble costs, under a statute,
by a judge's certificate, and judgment is entered up for treble costs gene-
ralljj without stating on what ground the defendant is entitled to them,
this is a substantial defect ; and the court of Common Pleas would not
amend the judgment, by striking out the word '■'■ treble :'\h) But the court
of King's Bench, in the same case, allowed an amendment to be made on
the record, by inserting the certificate of the judge who tried the cause,
allowing the plaintiff treble costs, which had been omitted by the clerk in
entering judgment in the Common Pleas.(2)

Costs are taxed by the master, in the King's Bench and Exchequer, or
prothonotaries in the Common Pleas, upon a bill made out by the attorney
for the prevailing party ;[a] or more frequently without a bill, upon a view of
the proceedings ; and if there have been any extra expenses, which do not
appear on the face of the proceedings, there should be an affidavit made of
such expenses, to warrant the allowance of them ; which is called an affidavit
of increased costs. (^) In country causes, such an affidavit is generally made ;
and if sworn before a commissioner, it must be filed with the clerk of the
rules in the King's Bench, or secondaries in the Common Pleas : and, in the
former court, the clerk of the rules makes a copy of it for the master ; but
in the latter court, it is usual for the secondaries, on being paid for a copy,
to mark the affidavit, and permit the original to be taken to the prothono-
taries, who keep it till the costs are taxed, and then send it to the
[ *990 ] secondaries to be filed. It is also usual to give notice *to the
opposite attorney, of the time when the costs are intended to be
taxed; but in order to enforce it, there must be a side-bar rule to be pre-
sent at taxing costs :(««) which rule is obtained from the clerk of the rules

(a) 1 Str. 49, 50. Cas. Pr. C. P. 16. Cas. /cm;). Harchy. 126. /J. 138. 2 Str. 1021. S.
C. Say. Rep. 214. 3 Wils. 442. 9 East, 322. Append. Chap. XXXIX. g 28, 31, 2, 3.
(6) 5 Taunt. 820. 1 Marsh. 382. S. C. 3 Maule & Sel. 591.
(c) 1 Str. 50.

{d) 2 Str. 974. Cas. temp. Hardw. 125. (e) Doug. 308, (;i).

(/) 2 Vent. 45. Doug. 307, 8. 7 Durnf. & East, 448 ; but see Doug. 308, n.
{g) Cas. temp. Hardw. 138, 9. (A) 5 Taunt. 820. 1 Marsh. 382, S. C.

(i) 3 Maule & Sel. 591. (A-) Append. Chap. XL. g 7.

{aa) Append. Chap. XL. § 5, 6.

[a] See Brightly on Costs, p. 299.


in the King's Bench, or secondaries in the Common Pleas, and a copy of
it should be duly served; after Avhich, if the costs are taxed Avithout notice,
the taxation is irregular, and the attorney liable to an attachment. If
either party be dissatisfied with the allowance of costs, he nuiy apply to
the cour^, for a rule to show cause why the master or prothonotaries should
not review their taxation :(i) And where an attorney had charged for a
declaration as containing more folios than it really contained, and this
charge was allowed by the master, the court of King's Bench held it to be
a good grouml for reviewing the taxation. (c) But the aflidavit, in su])port
of the rule, must be confined to the objections alleged against the taxation,
and not enter into the merits of the cause. (t^) And where an attorney's
clerk admitted, on the taxation of costs before the master, that the suit in
which the costs were taxed, was conducted by his employer from motives
of charity, on behalf of the plaintiff, the court of King's Bench held, that
the clerk was such an agent as to bind his master by such admission.(e)
In the Exchequer, an affidavit to ground an order nisi for the master to
revicAV his taxation, on account of overcharge, must point out the specific
items thereof, and distinctly show that they are erroneous.(/) And, in
that court, it is not necessary that a party applying for an order upon the
master to review his taxation of costs, should first pay into court the amount
of the ite^ns in the bill of costs, to which no objection has been made.(^)
But that court would not interfere with the province of the master, in the
taxation of costs de incremento, by ordering a new taxation in favour of
a defendant, on the ground that the plaintiff had been himself the cause
of increasing the amount of costs, by proceeding to trial, after an offer by
the defendant to give a cognovit.{h)

The means of recovering costs, as between party and party, are by exe-
cution or action, upon a judgment obtained for them; or by attachment,
upon a rule of court. (/) In proceeding by attachment, a copy of the rule,
with the officer's allocatur thereon, should be pe7'sonalli/{k) served on the
party liable to the payment of costs ; and at the same time the original
rule should be shown to him,(^) and a demand of payment made:(Z) And
when the costs are ordered to be paid to the attorney, the demand may
be by the acting attorney in the cause, although he act in the name of
another attorney. (m) If the costs be not paid, the court, upon
an affidavit of the circumstances,(«) will grant *an attachment •,{aa) [ *991 ]
the rule for which is absolute in the first instance,(i6) and may
be moved for on the last day of term.(cc) In the Exchec^uer, the defend-
ant, after a personal demand and refusal, may proceed against the plain-
tiff by suhpana and attachment, for non-payment of costs on a non pros,
or for not proceeding to trial,(t:?c7) or in ejectment, on a nonsuit, (<'<-) &c.

To assist the parties in the recovery of costs, and do justice between

{b) 5 Taunt. 6G0.

(c) 1 Chit. Rep. 544. (d) Id. 321.

(c) Dowl. & Kyi. Ni. Pri. 48. 3 Stark. Ni. Pri. 185, S. C.

{/) M'Clel. 61. 13 Price, 129, S. C. (ff) 11 Price. 510.

(A) 9 Price, 344; and see M'Clel. 12. 13 Price, 211. (') 2 II. Blac. 248.

(k) 3 Durnf. & East, 351. Pope y. Smith, K. B. per Cur.

h) JJubbard V. Horton, H. 3G Geo. III. K. B.

(m) Say. Rep. 95. (m) Append. Chap. XL. § 8.

(rtrt) Append. Chap. XL. I 9, 10.

(bb) Per BuUer, J. M. 24 Geo. III. K. B. 1 Bos. & Pul. 477. Ante, 480.

(cc) 5 Bur. 2G86. (dd) Append. Chap. XL. § 11, 12, 13, 14.

(ee) Append. Chap. XLVI. 3 127, 8.

Vol. II.— 19


tlicin, the}'- arc allowed to deduct or set off the costs, or debt and costs, in
one actit>n at!;ainst those in another. This practice, however agreeable to
natural justice, does not scera to have formerly obtained in the court of
Kinif's Bench :(/) But, in the Common Pleas, it has been frequently
allowed; and that, not only where the parties have been the same,{g) but
also where they have been in some measure different. Thus, a party has
been permitted to set off a separate demand, for costs payable to himself
alone, against a jo{7it demand, for costs payable by himself and others ;(/«)
or a joint demand, for costs payable to himself and another, against a sepa-
rate demand, for damages and costs payable by himself only.(z) And the
costs of a bill in equity, dismissed in favour of the defendant, may be set
off against the plaintiff's costs of an action at law in the King's Bench, for
the same cause, subject to the lien of the attorney. (/c) But the court on
motion, Avill not enable a prisoner to set off, in a summary way, a debt for
which he has obtained no judgment, against the plaintiff's execution :{l)
And where, in an action of trespass against four defendants, the plaintiff
obtained a verdict against one, and the other three were acquitted, the court
would not suffer the costs of the three defendants who were acquitted, to

Online LibraryWilliam TiddThe practice of the Courts of King's Bench and Common Pleas, in personal actions, and ejectment : to which are added, the law and practice of extents, and the rules of court, and modern decisions, in the Exchequer of pleas (Volume 2) → online text (page 47 of 111)