case agree against roll in ejectment a retraxit be enter as to one at nisi  prius and trial against the other and hold well before Edward c judge of nisi  prius can not record a nonsuit S c salk S c comy Rep ejectment against two who  enter into the common rule of confess lease entry and ouster at the trial  before a judge of nisi prius one of they refuse to confess lease entry and  ouster and the plaintiff enter a retraxit against he which the judge of nisi  prius record and go on to trial against the other and verdict for the  plaintiff and it be move in arrest of judgement first that a judge of nisi  prius can record a retraxit for before the statute of York a he can not record  a nonsuit and a nonsuit against one will make a end against both and yet a  retraxit as here contend for will not make a end as to both but will sever the  plead of the party against their own consent it be true if they have sever in  plead a retraxit against one will not discharge the suit against they both for  there the one defendant be not concern with the other side covenant against  two to build a house artificial and one of they let we judgement go against he  by default the other plead that he do build the house artificial and a verdict  for he and hold he that suffer judgement by default shall be discharge too for  now it appear there be not such cause modern report of action against both as  the plaintiff declare on side action against two executor one of they confess  a small quantity of asset and the plaintiff reply asset ultra vide the book at  large which holt chief justice deny to be law and quote long quint Edward bro  judge and it be further urge that the entry of a retraxit do not discharge the  defendant against who it be enter from be party to the issue till there be  judgement give quod eat ind without die and that can be do by a judge of nisi  prius but must be do above after the return of the postea and the estoppel  begin from that judgement and a retraxit must be enter in court and in not  common with others mask and can be by attorney accord to the rule of Beechers  case b second it be say that after a retraxit against one the judge can not  try the cause against the other for his commission be to try a action against  two the party themselves may have sever in plead but the judge of nisi prius  have only power to try the action this be not like a protection which the  judge of assize may receive and record and yet may proceed and try the cause  for if the protection lie not or lie and be not well cast the trial shall  stand but if it lie and be well cast the trial shall go for nothing but after  a retraxit well enter against one the judge of assize have no more power to  try the cause than he have upon a plea puis darrein continuance and there all  he can do be to record the plea and bring it up and then the other party may  reply take issue or demurrer and the matter shall be determine above quod holt  chief justice to go away and if the judge of nisi prius can discharge the  defendant he still remain party to the issue before he and the judge  commission be only to try that issue to which he be party and privy he can try  no other and he say a judge of nisi prius can not plead a excommunication in  the plea puis darrein continuance though that be a legal disability and the  defendant have no other opportunity of plead it and that be a much strong case  than the present and more deserve of the equity of the statute of York Edward  c and Edward and roll Abr be express that a judge of nisi prius can take a  plea of excommunication but he may do whatever be necessary incident to the  trial as to take a challenge to the array or juror witness c and it be by  subsequent act of parliament that they have power to give judgement in some  particular case as felony treason quare hinder c modern report vide hard style  and the statute of Henry Westminster the second c for as judge of nisi prius  they can do nothing but a Edward c b Danv Abr modern report er p what tend to  the trial of the issue and without a judgement one can be sever from the issue  and then it can be try against one without the other to which it be say that a  judge of nisi prius may do whatever tend to the aid or furtherance of the  business Inst Edward he may receive a protection plea puis darrein continuance  be record every day by they they may likewise receive a challenge and record a  demurrer to it Yelv and why may he not as well receive and enter a retraxit  which be no more than a agreement on record that he will not prosecute against  that party and a retraxit be not a confession of the want of cause of action  but a agreement not to proceed and therefore if trespass be bring against two  one may enter a retraxit against one and proceed against the other for by the  retraxit the writ do not abate and yet if he have confess that he have no  cause of action against one of they the writ will have abate and be can not  proceed against the other for such confession falsify his writ which a  retraxit do not and in ejectment against two and a joint plea and venire and  before day of nisi prius one of they die the plaintiff may suggest the death  of one of they at the trial and upon entry thereof proceed against the other  and a defendant may at a day of nisi prius relict verification cognovit act  and that may be enter by a judge of nisi prius and why may not he as well  enter a retraxit for all the party be demandable at the day of nisi prius and  a entry of their appearance be always on the postea and the plaintiff be  demandable before the jury give their verdict and sure the judge may as well  record a retraxit whereby the plaintiff agree to cease his prosecution for  ever as a cognovit act of the defendant side or a nonsuit of the plaintiff  vide   Ent as to record of relict verification cognovit act and it be also say  and indeed not deny that if there be two defendant in trespass and they plead  not guilty and at the trial one of they relict verification cognovit act that  the judge must record it and proceed against the other which be say by gold  justice to be the same in effect with this case and then as to his power of  try the issue against the other be quote roll Abr pl two coparceners in a real  action and one of they be nonsuit at the assize modern report the judge of  assize may record the nonsuit and try against the other and if the defendant  have sever in plea the plaintiff may be nonsuit against one and proceed  against the other and so be the case in cro and so he may enter a retraxit  against one and proceed against the other for a non pro do not amount to a  release ibidem and it be say that this be only a action of trespass which be  in its nature several and therefore though the defendant do joint plead not  guilty yet that plea will be take as the nature of the action distributive as  much as if each defendant have plead not guilty in which case a retraxit may  well be against one and proceed against the other vide Henry cro be against  hob that non pro before judgement be no release and be law vide keb ace to cro  a holt chief justice agree the case in cro to be law but say there be great  difference between a several plea and a joint one for where many join in a  plea there go but one venire facias but if they sever there shall be several  venire fac or if there be but one it must be special and it must be mention to  be for the trial of several issue and it be true in trespass against many and  not guilty plead by all it be so far a several issue that the jury may find  some guilty and acquit the rest though all join in the plea for the word be to  come et to say guide non are ind worthy of blame if a judge of nisi prius  allow or disallow a challenge it be all sub modus for if he allow it when it  ought not to be or v ice line and that appear on the postea the trial shall go  for nothing but as to thing of necessity he be to allow they as of plead puis  darrein continuance as release between day of nisi prius and day in bank  because the defendant have no other time to plead it than at nisi prius for  that the day of nisi prius and day in bank as to plead be the same and in such  case all he have to do be to receive the plea and return it upon the postea  for the judge of court above to judge of and after the statute of nisi prius  and till the statute of York a judge of nisi prius can not record a nonsuit  and therefore during all that time none can be nonsuit at nisi prius and if  that statute do not enable he to record a retraxit how can he do it and sure  this entry of a modern report er p retraxit be not a matter of necessity for  in this case now before we the jury may acquit he that will not confess lease  entry and ouster and give a verdict against the other and that have be the  true way and beside modern report the party may have enter his retraxit above  and therefore likewise it be no matter of necessity to have it do at nisi  prius and he say this be a maggot that can not crawl and he say that he be not  satisfy with the case before put that one can not plead excommunication in the  plea puis darrein continuance at nisi prius and he agree that a retraxit be  not a confession of want of cause of action but only a agreement on record to  cease proceed against that defendant and yet in that case if he may proceed  against the other defendant as he may in some case he shall recover his  possession and damage against he and if by virtue thereof he will molest the  possession of he against who the retraxit be enter be shall therefore maintain  trespass against he and beside if it be do by fraud the court upon motion will  set it aside and whereas the cause in vent be quote where in ejectment against  two one of they will not confess lease entry and ouster or do not appear the  plaintiff be nonsuit against both and have cost tax against he and it be say  that he that will not appear have a interest in the cost and may release they  holt say if there be two defendant in ejectment and they enter into the common  rule and at the trial they will not confess lease entry and ouster the  plaintiff shall be nonsuit but shall have judgement against the casual ejector  but if one of they only do refuse to confess it he shall be acquit and the  plaintiff if be show title shall recover the whole against the other and if  judgement be against the casual ejector and it be make appear that no  declaration be right serve the court will set it aside and if at commonlaw a  ejectment have be against one that have nothing in the land and upon judgement  against he another be turn out of possession there be no remedy for the right  owner but trespass or a writ of deceit and this still be all the certainty any  man have of his possession and now all we can do be to set such recovery aside  and to punish the offender and he confess the case of the defendant relict  verification cognovit act that by the judge of nisi prius it may be record but  he say that be because there it will be in vain to try the issue but it be  never attempt that where there be two defendant and non pro enter against one  of they that the plaintiff can proceed against the other but where they sever  in plead and be remember hob cro Welsh v bishop and the same in Bulstrode and  a case modern report in the year ejectment against two one confess the action  and the other plead not guilty and it be question whether the plaintiff may  enter a non pro against one of they and have judgement against the other and  then it be hold he can not and a difference be take between trespass and  ejectment but he say he do not take that to be law or that the writ shall  abate by a non pro against one or that there be any difference between  trespass and ejectment in that point vide raze Ent assize against two the one  be find guilty and the other acquit and judgement and damage against he that  be acquit and for the other and the precedent in   sir George brown case be in  point so in case of ejectment and why may it not be so in this case he agree  in ejectment they can not be nonsuit against one and proceed against the other  but if there be two defendant and one of they will not appear or will not  confess lease entry and ouster he may be acquit and the plaintiff proceed  against the other and be who be acquit be a party to the record and if be can  have a writ of error it be because he be not hurt by the judgement and if  there can be a verdict against he he shall have a writ of error and if there  have be a actual ouster as former he shall have a writ of error if one confess  lease entry and ouster for as much of the premise as be in his possession the  jury shall inquire against he alone for so much and if the other will not  appear or not confess c there shall be judgement for so much of the premise as  be in his possession judgement against the casual ejector and where one will  not confess lease entry and ouster be shall be acquit and that will be as well  for the plaintiff for as to he he may have the judge certificate for judgement  against the casual ejector if one be nonsuit for the defendant not confess  lease entry and ouster upon certificate thereof there must be judgement  against the casual ejector and may not his certificate of a acquittal for the  same modern report er p cause have the like effect and if there be several  defendant and some confess for all in their possession and there be other will  not do it let they that will not be acquit for that reason and the trial go on  as to the rest and judgement be for so much upon the verdict and for the rest  against the casual ejector and that will fetch the possession equal well for  the plaintiff and he say in my Lord north time if there be several defendant  and one of they will not confess lease entry and modern report ouster the  plaintiff be nonsuit against all and have judgement for the whole against the  casual ejector and that he say be hard to turn one out of possession for the  default of another who be Willing to defend his title and he say he never know  a non pro against one when two have join in a plea enter at nisi prius but it  may be do above and a distringa take out as to the other only at last it be  hold well by gold and powis justice against holt chief justice and error be  bring before the lord and judgement affirm