Of Defect in the Affidavit of Service. It often happens that an affidavit of the service of an ejectment is defective, such as not stating the particular mode in which the party served it: in that case the customary mode has been, to get a supplemental affidavit made, which take to the clerk of the rules, who will attend a judge thereon, and obtain an order to draw up the rule. See Jinny v. Cutts, 1 New Rep. 308. Doe dem. Robinson v. Roe, Trin. 35 Geo. 3. K. B. cited Tidd, 6 Ed. 510. Rules for Judgment. next after the third. Doe dem. of? in the 57th year of king Geo. Unless the tenant in possession (or if Rule for judgA. v. Roe. S the premises are untenanted "unless ment for the "some person claiming title to") the premises in question, shall next after appear and plead to issue on let judgment be entered for the plaintiff against the now defendant Roe. Upon the motion of Mr. next after By the Court. whole premises. If for part, then, unless C. D. tenant in possession of The like for part of the premises in question shall appear and plead to part. issue on let judgment be entered for the plaintiff against the now defendant Roe by default: but execution shall issue for such part of the premises as is in his possession. Upon the motion of Mr. By the Court. Unless C. D. &c. tenants in possession of part of the The like premises in question, and unless or some other where part person claiming title to such parts of the said premises as of the preare untenanted, shall appear and plead to issue on next after mises are tenanted, and let judgment be entered for the part untenantplaintiff against the now defendant Roe by default; but ed. execution shall issue for such part of the premises only as is in the possession of the said tenants, and such other parts as are untenanted. Upon the motion of Mr.By the Court. Of Judgment for Non-appearance and Plea. The rule for judgment against the casual ejector being drawn up, if the tenant does not file common bail, if by ejector. bill, (or if by original, enter his appearance with the filacer,) and plead within the time limited by the rule, (which in a town cause is four days exclusive after motion made, in a country cause four days exclusive of the last day of the issuable term,) for which plea search at each of the judge's chambers, who keep an ejectment book How to sign for that purpose, then enter on a 10s. stampt paper, the judgment memorandum (if by bill), if by original," the declaraagainst casual" tion only," so far as the premises; get a roll, enter the warrants of attorney thereon, as on other judgments, only say, "in a plea of trespass and ejectment," and on producing the rule for judgment, the clerk of the judgments will sign it, and in such case, common bail must be filed for the casual ejector, pursuant to R. M. 33 Car. 2. if by bill: if by original, there need no appearance, for the rule says "common bail only;" then sue out a writ of possession, pay signing judgment 4s. 2d. if on one demise. The judgment cannot be signed until the afternoon of the fifth day. Say. Rep. 303. Sunday, if the last day, is not reckoned a day, ibid.: therefore judgment cannot be signed till the afternoon of Tuesday. When to be signed. Although judgment be signed, if no possession is given or trial lost, and there be merits sworn to, it may be set aside on payment of costs upon motion. 1 Salk. 117. Str. 975. Dobbs v. Passer. The court said great inconveniences may arise if we do not interfere, timber may be felled, &c. In vacation the judge may stay proceedings if defendant have merits, which must be sworn to, provided the plaintiff will not waive his judgment on pay. ment of costs. Of amending Declaration. It was formerly held, that a declaration in ejectment could not be amended; but it being a mere fictitious action, and the demise mere matter of form, it may be amended by altering the day of the demise so as to save the plaintiff from being barred by a fine, 4 Burr. 2447. Doe v. Pilkington; therefore as the demise may be altered, there can be no doubt but that other parts less material may also be amended, the action being invented under the control of the court, for the advancement of justice, and merely to try the right in question. I Burr. 665. The term was amended without consent from five to ten years. Str. 1272. Oates v. Shepherd. Vide 1211. 5 Mod. 333. A verdict cures a defect in setting out the title, though Verdict. it cannot cure a defective title. Stevens v. Evans, 2 Burr. 1159. Vide 1152. 4 Burr. 2447. The judges now amend declarations in ejectment, in Amended by the demise, after appearance, on a summons for that summons. purpose, it being a mere creature of the court, and open to every equitable regulation for expediting the true justice of the case. 2 Black. Rep. 940. When to enter Appearance in Town. If the tenements lie in London or Middlesex, and the Appearance notice in the declaration be to appear the first day of the in town. term, the tenant has four days exclusive of one day, and including the other, to enter his appearance next after the motion; provided the motion be made before the last four days of the end of the term; if moved after then until two days before the essoign-day of the subsequent term. If the notice should so happen as to be made to appear generally of the term, then the tenant has the whole term to appear in. If in the Country. If the tenements lie in any other county than London In the country or Middlesex, the tenant has four days after the issuable term, viz. Hilary or Trinity (although it be moved in Easter or Michaelmas term,) or if it be in a county, as Cumberland, where the assizes are held but once a year, then four days next after the end of the term preceding the assizes. It is said that the tenant cannot appear after the time allowed by the common rule for appearing is expired. Say. Rep. 151.; but I have no doubt he may, any time before judgment actually signed. Wednesday. If term ends on Wednesday, tenant has all Monday to If term ends appear in, and judgment cannot be signed until Tuesday afternoon. Say. Rep. 303. Both parties If an ejectment be brought on the forfeiture of a lease, may now have the court will compel the plaintiff to deliver a particular a particular. of the breaches of covenant on which he intends to rely. 6 Term Rep. 597. So if the plaintiff declare generally in ejectment, and If declaration be general. the defendant have any doubt what lands the plaintiff means to proceed for he may obtain a judge's summons, Defendant to specify for what he de fends. How to appear for te nant. Common consent rule. to specify them, who will make an order. 7 Term Rep. 332. (in notes) Doe v. Duke of Newcastle. On the other hand the plaintiff may call on the defendant, to specify for what he defends, when that is not ascertained by the consent rule. Ibid. How to appear for the Tenant. Get a blank consent rule from the stationers, pay 2d. fill it up in this manner (if you mean to defend for all the premises mentioned in the declaration), and the defendant's attorney only signs it, leaving a blank space above for the plaintiff's attorney to do the like, (for this is an agreement only entered into by the parties, for the rule itself, to be drawn up,) which is afterwards drawn up by the clerk of the rules. Trinity term, in the 57th year of the reign of king George the third. Markham and Le Blanc. Middlesex, to wit. Doe, ex demise of. It is ordered, by the consent of the attornies for both parties, that Joseph Nix, who claims title to the tenements in question, be made defendant in the stead of the now defendant Richard Roe, and do forthwith appear at the suit of the plaintiff, and file " "mon bail," (if the declaration be by original, leave out the words, "and file common bail,") and receive a declaration in an action of trespass and ejectment for the premises in question, and forthwith plead thereto, not guilty and upon the trial of the issue, confess lease, entry, and ouster, and insist upon the title only; otherwise let judgment be entered for the plaintiff, against the now defendant Richard Roe, by default; and if upon the trial of the issue, the said Joseph Nix shall not confess lease, entry, and ouster, whereby the plaintiff shall not be able further to prosecute" his bill" (if by original, say" his writ") against the said Joseph Nix, then no costs shall be allowed for not prosecuting the same; but the said Joseph Nix shall pay costs to the (a) If you appear for all the premises, specify them as in the declaration. plaintiff in that case, to be taxed: and it is further ordered, that if upon the trial of the said issue, a verdict shall be given for the said Joseph Nix, or it shall happen that the plaintiff shall not further prosecute his said "bill," (if by original, say " writ,") for any other cause than for not confessing lease, entry, and ouster, then the lessor of the plaintiff shall pay to the said Joseph Nix costs in that behalf to be adjudged. R. G. attorney for defendant. N. B. This rule will do for a country cause. rule. This rule confesses the lease supposed to be made to Explanation of the plaintiff as stated in the declaration, his entry in con- the consent sequence, and the defendant's ouster of him; therefore the trial now stands upon the merits of the title only; and the original declaration is now altered by inserting Joseph Nix, the real defendant, instead of Richard Roe, the casual ejector. If a man is seised in fee of the premises in question, If a man ocand they are in his own occupation, he enters into the cupy the precommon consent rule only, and not as landlord. mises. their land By 11 Geo. 2. c. 19. s. 12. "Tenants are obliged to Tenants must give notice to their landlords of a declaration in eject- give notice to "ment being delivered, under pain of forfeiting three lords. years improved or rackrent of the premises held by "the tenant." 66 A tenant to a mortgagor who does not give him notice Tenants to a of an ejectment brought by the mortgagee, to enforce mortgagor. an attornment, is not liable to the penalties of 11 Geo. 2. c. 19. s. 12. for secreting ejectments, Buckley v. Buckley, 1 Term Rep. 647. It extends to cases only where ejectments were brought, which were inconsistent with the landlord's title. Ibid. It appeared that the ejectment was brought for the purpose of compelling the tenant to attorn to the mortgagee, which the act expressly permitted him to do. decla memo led up, annex it to plea, if it be by bill, file common bail. When the rule is filled up and signed, annex to it the When rule filplea of the general issue of not guilty; and if the ration be by bill, file common bail, and deliver a randum or warrant at same time on a 5s. stamp. The clerk of the common bails (if by bill) marks the rule by consent, then take rule and plea to one of the judge's chambers, leave same, pay 2s. filing common bail in term, 1s. 2d. in vacation 4d. more. The clerk of bails marks the rule by consent, before plea filed. If the declaration be by original, then take the rule If it be by ori ginal. |