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Where plaintiff has judgment for part, and defendant for part, 697.

When a plea going to the whole declaration is found for defendant, 698.

Stat. 22 and 23 Car. 2, c. 9, giving no more costs than damages where the latter are under
forty shillings, 698.

Extends to trespasses to freehold, and to any thing growing upon or affixed to the freehold,

699.

But not to action where a distinct injury to a chattel is alleged in the declaration, 699.
Nor when action is first brought in inferior court, 699.

Nor where defendant justifies, 700.

Granting a view does not entitle plaintiff to full costs, 700.

Costs on new assignment.

Where defendant pleads not guilty to new assignment, 700.

Where defendant suffers judgment by default on new assignment, 702.

Where defendant suffers judgment by default on new assignment, but suffers a general
plea of not guilty to remain on the record, 702.

Stat 8 and 9 W. 3, giving full costs where the trespass is certified to be wilful and malicious,

703.

Certificate need not be granted at the trial, 703.

Whether the judge is bound to certify in case the trespass has been committed after no-
tice, 703.

Stat. 4 and 5 W. and M. giving full costs against inferior tradesmen, &c. hunting, &c. 704.
What persons are within the statute, 704.

TRESPASS for MESNE PROFITS. (See title Mesne Profits.)

TRUSTS.

Devises in trust, construction of, 490 to 493. (See title Ejectment.)
Possession of cestui que trust no bar to ejectment by trustee, 504.

VACANT POSSESSION.

Mode of proceeding in ejectment on vacant possession under stat. 4 G. 2, c. 28, 535.

Mode of proceeding in general, 546.

Party may enter without ejectment, 546.

Notice to appear in ejectment on, 555.
Affidavit of service of declaration, 565.

VENDOR AND PURCHASER. (See title Assumpsit on Sale of Real Property.)

VENUE, in real actions, 18.

In actions on the case for nuisance to real property, 379.

In covenant, 451.

In debt for rent, 470, 471.

In debt for use and occupation, 477.

In ejectment, 548.

VIEW in REAL ACTIONS.

When denied, 247.

When the tenant has no other lands in the same vill, 247.

When the tenant is in by his own wrong, 247.

In intrusion and entry in the quibus, 247.

The rule does not extend to cases where the view is demanded of another thing thau

that sought to be recovered, 247.

Where there is a privity of blood, 247.

In writ of right of dower, 248.

In case of the heir at common law, 248.

In case of the alienee of the husband by stat. of Westm. 2, c. 48, 248.

In dower unde nihil habet, 248.

In various other actions, 248.

In what cases taken away by stat. West. 2, c. 48, 249, 250.

When the tenant by his plea takes cognisance of the land, 250, 251.

When granted, 251.

In what actions, 251.

At what time prayed.

Before or after the count, 251.

Whether after a general imparlance, 251, 252.

After day taken by prece partium, 252.

In writ against two where one confesses the action, 252.

At the grand cape returned, 252.

Not after plea, 252.

Counterplea of view, 252.

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VIEW in REAL Actions, (continued).

In what cases, 252.

Judgment against tenant on demurrer to counterplea peremptory, 252.
For tenant, that he have a view, 252.

Writ of view.

Duty of demandant to point out the lands, 252.

Sheriff must give notice to the viewers and to the tenant, 253.

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VOUCHER.

Origin of, 257.

Two modes of taking advantage of warranty, voucher, and rebutter, 257.

Originally no distinction between lineal and collateral warranty as to voucher, 257.

How affected by stat. Gloucester, 6 Ed. 1, c. 3, 258.

And by statute de donis, 258.

By stat. 11 H. 7, c. 20, warranties on alienation by wife of husband's lands made void, 258.

By stat. 4 Anne, c. 16, warranties by tenant for life, and collateral warranties by ancestor
having no estate of inheritance made void, 258, 259.

Distinctions between warranties and covenants for title, 259.

Express or implied.

Express by word warrantizo, 259.

Implied in word dedi in feoffment, 259.

In homage ancestral, 259.

In exchange, 259.

In gift in tail or lease for life rendering rent, 259.

In assignment of dower, 259, 260.

Implied general warranty not destroyed by express general warranty, 260.

Who may vouch.

Privity necessary, 260.

No one who is in in the post, 260.

Quare as to cestui que use, 260.

No one who is in of another estate, 260.

Not an assignee unless named, 260.

But assignee of tenant for life may vouch on implied warranty, 260.

Donee or lessee for life remainder over in fee, 260, 261.

Aliter where remainder is not limited over, 260, 261.

Assignee of part of the laud, 261.

Not the assignee on implied warranty on partition, 261.
Coparceners must vouch jointly, 261.

Unless after partition made by the act of one only, 261.
Jointenants must vouch jointly, 261.

Unless upon special cause shewn, 262.

As where one jointenant has made a feoffment, 262.

By stat. 31 H. 8, c. 1, s. 3, jointenants after partition may have aid to dereign wai-

rauty paramount, 262.

Tenants in common must sever in vouching, 262.

Tevant in some cases may vouch himself, 262.

Who may be vouched.

Heir not bound unless named, 260.

VOUCHER, (continued).

Except in cases of implied warranty, 260.

Assignee of donor in tail or lessor for life on implied warranty, 261.
Coparceners must be vouched jointly, 261.

Gavelkind heirs and heir in borough English, 261.

Jointenants must be jointly vouched, 262.

Where one dies, survivor and heir vouched, 262.
Tenant in some cases may vouch himself, 262.
Demandant may in some cases be vouched, 262.

In what actions it lies, 263, 264.

In what cases necessary to shew cause in vouching, 264.
Vouchor cannot vary from the cause shewn, 264.

Cause may be counterpleaded, 264.

Or if insufficient demurred to, 264.

Counterplea of voucher, 264.

Distinction between counterplea of voucher and of warranty, 264, 265.

To the person of the vouchor or vouchee, 265.

Counterpleas given by statute, 265.

By stat. West. 1, c. 40, that the tenant or his ancestor was the first that entered after
the death of person last seised, 266.

To what actions stat. extends, 266.

Tenant by receit and vonchee within the act, 266.

If vouchee will immediately enter into warrauty no counterplea lies, 266.

By same stat. that vouchee never had seisin, &c. whereby he might have enfeoffed the
tenant, 266.

To what actions it extends, 266.

What seisin is intended, 266, 267.

Tenant ousted by these counterpleas may have war, char. 267.

Counterplea of warranty, 267.

Abatement of voucher and revoucher, 267, 268.

Process against the vouchee, 268, 269, 270, 167.

Against infant vouchee, 269.

Against foreign vonchee, 269.

Essoign upon, 159.

By what warranty the vouchee after entry may be bound, 270.

Where the vouchee is an infant, 270.

Where cause is shewn, for no other cause, 270.

Where two are vouched, and it appears that one was an infant at the time of warranting,
270.

Proceedings after voucher.

Demandant must count de novo, 270.

Plea to the count, 270, 271.

Judgment upon voucher.

Upon issue on counterplea to voucher, 271.

On demurrer to counterplea, 271.

On demurrer to voucher, 271.

On issue between tenant and vouchee, 271.

On demurrer between tenant and vouchee, 271.
In dower, 272.

Recovery in value.

Damages may be recovered against vouchee, 272.

No recovery against remainderman on warranty implied on lease for life, 272.

But voucher lies in such case in lieu of aid prayer, 272.

Execution cannot be sued against vouchee before execution against tenant, 272.
Recovery against one when two are vouched, 273.

No recovery where process has not been served, 273.

What shall be recovered.

Only to the amount of assets from warranting ancestor, 273.

On exchange, only the lands given in exchange, 273.

What by tenant for life, 273.

What by tenant in fee, 273, 274.

What by and against tenant in tail, 274.

What by tenant in dower, 274.

What by heir ex parte maternâ, 274.

What by special heirs, 274.

According to what value, 274.

VOUCHER, (continued).

To value at time of warranting, though afterwards increased, 274.

But vouchee must plead this specially, 274.

Unless the land becomes of greater value after the entry into warranty, 274.
Reason of common recoveries being suffered on writ of entry in the post, 274.
UNDERLEASE.

When breach of a covenant not to assign, 434. (See title Covenant.)

UNDERWOOD. (See title Trees.)

USE AND OCCUPATION, assumpsit for.

Where assumpsit lay for rent at common law, 404.

Stat. 11 G. 2, c. 19, s. 14, 404.

Equivalent for the rent, not the rent itself, recovered, 405.

Plaintiff's title.

Need not be a legal one where defendant came in under him, 404, 409.

Aliter where defendant came in under another, 404, 405.

Grantee of reversion may have it, unless before notice the rent has been paid to the
grantor, 405.

Notice of title of cestui que trust sufficient in action by trustee, 405.

Tenants in common, when they may join or sever, 405.

Defendant holding under plaintiff cannot impeach his title, 405.

Though he may shew it expired, 405.

In which case he must renounce it at the time, 406.

Title of grantee of reversion cannot be impeached, 406.
Submission to distress acknowledgment of title, 406.
Effect of judgment by default, 406.

Defendant's occupation.

Need not have been actual, 406.

Tenant liable, though he has quitted in pursuance of a parol licence from landlord, 407.
Unless landlord has accepted another tenant, 407.

Or has himself determined the occupation by accepting the key, 407.

After bankruptcy, 407.

Assignees not liable for bankrupt's occupation, 407.

Husband not liable for the occupation of his wife, dum sola, 407.

Tenant liable after premises burnt down, 407.

When premises are let for an immoral purpose, 407.

In what cases a person is liable who enters under a contract for sale, or without ex-
press stipulation as to a tenancy, 408, 409, 410.

When under an agreement for a lease, 409.

When the occupation is determined.

By acceptance of new tenant, 410.

By acceptance of key, 410.

By eviction, 410.

By recovery in ejectment, 411.

When the demise is by deed assumpsit will not lie, 411.

Aliter, when the instrument does not operate as a demise, 411.
Declaration in.

Local situation need not be stated, 411.

But, if stated, must be proved, 411.

It must appear by whose permission defendant occupied, 411.

Plea.

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Plaintiff's title, how proved, 412.

Defendant's occupation, how proved, 412.

Continuance of tenancy presumed, 412, 413.

Occupation determined, 413.

Executor sued as assignee what evidence defence, 415.

Local situation of the premises, 413.

Damages, how calculated, 413.

Where defendant has held under an unstamped written agreement, parol evidence inad-

missible, 413.

But such agreement must appear to be between the parties as landlord and tenant, and
to relate to the time in question, 413.

DEBT for. (See title Debt.)

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WARRANTIA CHARTÆ, writ of.

Nature of the action, 142.

May be brought quia timet, 142.

(See title Ejectment.)

(See title Saver Default.)

Grounded upon warranty either express or implied, 142.
In many cases concurrent remedy with voucher, 142.
Lies in cases where there is no voucher, 142.

Lies before plaintiff is impleaded in other action, 142.

But no execution issues till damage accrues, 142.

And if afterwards impleaded in action in which voucher lies he ought to vonch, 143.

Or if no voucher lies in such action be ought to require a plea from his warrantor, 143
Lost if he does not sue before he loses land in other action, 143.

Does not lie if plaintiff is in of another estate, 143.

Form of the writ, 143.

Process in, 143.

Venue transitory, 143.
Limitation of, 11.
Count in, 188.

Pleas in bar in, 246.

Damages in, 318.
Costs in, 323.

Judgment in, $39.

WARRANTY. (See title Voucher.)

Releases or confirmation with warranty will create discontinuance, 45, 51.

Collateral must be pleaded in writ of right, 215.

Actual or implied, 257, 259.

Statutes restraining, 257, 258.

Who may take advantage of, and be bound by, 260.
Collateral, said to make a title in ejectment, 489.

WASTE, writ of.

BY WHOM BROUGHT.

Immediate reversioner or remainderman in fee or in tail, 107.

But not where there is an intermediate estate of freehold, 107.

Until after the determination of that estate, 107.

Or unless the intermediate remainder is contingent, 107.

Or for years, 107.

Not where the reversion has been granted for years, 107.

Aliter where reversionary lease is made, 107.

Special cases where waste lies, though lessor had nothing in reversion at time of waste
done, 108.

Where lessee for life makes feoffment in fee on condition, and waste is done, 108.

Where waste is done in the vacancy of a see, 108.

Where lessee is disseised and waste done, 108.

Cases where one who has not the inheritance may join in waste, 108.

Where tenant for life, and reversioner in fee, join in a lease, 108.

Where reversion is granted to two, and the heirs of one of them, 108.

Where two jointenants for life, reversion to one of them, join in a lease, 108.

Remedy by stat. West. 2, by one jointenant against his companion for waste, 108.
Stat. does not extend to parceners before partition, 109.

Coparceners, how they must sue, 109.

Heir cannot sue for waste done in his ancestor's time, 109.
Nor successor for waste done in his predecessor's time, 109.
Nor grantee of reversion for waste done before grant, 109.

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