case tempt Hardwicke jordan and TWELLS where plaintiff have lose a trial  defendant will not be permit to amend his plea in plead eviction by a person  other than the plaintiff the defendant must show that the evictor have title  to enter who title ought to have be set out and the defendant shall also show  under what process the evictor enter action of debt on a covenant contain in a  indenture of lease defendant plead that after make the lease and before any  rend due and Payable one king p after make the say indenture have a prior and  better right and title to the premise case tempt Hardwicke er p than have be  grant to the defendant against his will enter into the premise and by due  process and course of law expel and evict the defendant to this plea plaintiff  demurrer and show for cause that the defendant in his plea have not set forth  what right or title the say king p have to the premise nor by or from who such  title accrue to her nor have traverse or confess the title set up by the  plaintiff nor have set forth by what process nor out of what court issue the  say king p do evict he and upon this demurrer the defendant join so long ago  as easter term last and the cause be now make a concilium and stand for  argument this day but three or four day ago since the cause be set down in the  paper tailor for defendant move to amend the plea and now draper show cause  videlicet that the application be now too late the plaintiff have be delay of  his trial last assize and the cause be dow in the paper and cite the case of  the king and Edward Michaelmas that of thepresent king where after the  defendant have demurrer and a assize pass and he afterward apply to with draw  his demurrer and plead the court refuse because the trial have be delay Lord  Hardwicke c j the great objection to this motion be that the plaintiff have  lose his trial and if this be allow it will be a certain method of delay  former in all amendment the party be to show that the proceed be all in paper  though of late that have be get over lee I I think the case of the king and  Edward be just this case and the court refuse it because it tend to delay page  I there have amendment sometime be allow even when the cause be come down to  trial and I remember in the case of dyle and the bishop of Worcester in  ejectment after trial have the plaintiff find he have leave out the name of  one of the defendant in the nisi prius roll and be allow to amend it but I  believe all amendment that have be allow of when the cause be get so forward  have be at the instance of the plaintiff cur will not let he amend as will be  evident from this case and from the authority cite below all amendment be  altogether discretionary in the court see I east r in the present case one  ground of refuse the amendment be that it be not seek at the instance of the  plaintiff but see salk pale yellow c p where it seem that after a demurrer or  joinder in demurrer either party be at liberty to amend as a matter of course  while the proceed be in paper and amendment be permit even after demurrer  argue wms sand Str burr Doug Doug east r bar but not after the opinion of the  court on argument east r I see bar h Bl Bos pull Bos pull the general doctrine  in this respect be that if one party obtain leave to amend or to withdraw his  demurrer the other party shall not be delay or prejudice thereby burr and in  furtherance of the general doctrine that amendment will always be permit for  when the justice of the case require it and there be any thing to amend by the  court have go the length of permit a plaintiff to amend his replication to a  sham plea after argument without even pay cost I east r this case seem however  to have be cite as a instance where the court have not advert to the rule lie  down burr see Tid d edit and certain by that decision the defendant although  avail himself of the rule and practice of the court be prejudice case tempt  Hardwicke and immediate the cause which have be reserve till after this motion  be call on for argument draper pro quer take another exception to the plea  beside the cause show in the demurrer videlicet that it be not show that the  say king p have a title to enter he take also another exception to plea  videlicet that the defendant have not traverse his possession and enjoyment of  the premise to support which he cite Ventris Bainton and Bobbet and he say  that this be a plea of nil to have in property and cite the case of Evans and  lady fauconberg Michaelmas geo Com r where it be solemnly determine that nil  to have in property can be plead against a indenture of lease he say further  that the defendant ought to have show that the eviction be by judgement and  writ of possession and that it have be hold that case tempt Hardwicke er p  show a writ of possession award be not a sufficient show of the eviction  without show the judgement also tailor pro to ward off as to the exception for  not set out the evictors title he cite lev proctor and Newton lev Buckley and  William and Norman and foster Mod where in action of debt on bind for not  perform a covenant in a lease for quiet enjoyment plaintiff assign for breach  that stranger enter but do not say that he have title and hale say to have  distinction at that time will have do your business he cite also Vidians entry  where there be a plea of eviction just in this manner draper in reply cite  Winchs entry where there be a precedent of such a plea with all those matter  set out which ought he say to have be set out here Lord Hardwicke c j as to  the exception for want of set out the evictors title I think the plea be ill  and no case have be cite to show it good for the case rely on for the  defendant be breach of covenant for quiet enjoyment and in those it be  sufficient if you assign the breach in the word of the covenant so you show  that the title of the evictor be not derive from the plaintiff himself but in  this case here be no assignment of breach follow the word of a particular  covenant for aught appear this eviction may be by collusion upon this plea  there must have be a complicate issue of law and fact before the jury for the  issue must have be that king p have not a better right and title than have be  grant to the defendant the defendant ought to have show likewise that king p  have a title to enter for possible she have no title of entry though she have  case tempt Hardwicke a title to recover in a real action and in the entry cite  from winch the plea show a good title and a title of entry and as to not set  out what process it be have in that also for if the defendant have show a  judgement and writ of possession plaintiff may have take issue of nul tiel  record but this plea be not a plea of nil to have in property cur judgement  for plaintiff the authority of this case so far as relate to the plead  eviction have be solemnly deny first by t r where it be rely upon arguendo as  a principal case for the very point here raise and resolve but the ancient  authority then cite together with the unreasonableness of exact at a party  hand the plead fact about which he can know nothing determine the court to  adhere to the old decision second by t r where the case t r be advert to and  Lord Kenyon c j in deliver the opinion of the court in t r say that all the  former case be consider and that the breach in the declaration in that case be  well assign and therefore on the authority of t r and on the expediency of the  thing the plaintiff in t r have judgement