Berry's Lessee v. Willett

³⁷⁷ The plaintiff’s counsel at the trial, moved for judgment against the casual ejector for the undefended part, viz* such part as the defendant had first taken defence for and afterwards on amendment had relinquished and moved for full costs up to the time of making the amendment. The Court directed the following entry to be made, viz. “ Judgment against the casual ejector for all the lands in the declaration mentioned, which are undefended by the defendant upon the plots returned in this cause. “ On motion of the plaintiff by his counsel, and it appearing to the court that part of the land for which this ejectment is brought, and which is now undefended, was in the defendant’s possession at the time of bringing this ejectment, and is still in his possession, and that the defendant actually took defence for the same upon the plots returned in the cause at the last term, and hath since relinquished his claim thereto and excluded the same from his defence, as appears by the plots returned in this Court, “ It is ordered by the Court, that the defendant pay to the plaintiff his costs by him expended in this suit up to this term; and if the plaintiff proceeds to trial, that all sub* sequent costs shall depend on the event of the trial.”