Plea of not guilty. If several claim title. In ejectment defendant's at torney to give plaintiff's attorney notice of the tenements he defends for. The present mode. and plea with the memorandum to the filazer, with a note of appearance, thus, on plain paper: " Middlesex (ss.) Appearance for Joseph Nix, at the suit of John "Doe on the demise of Edward Staples;" he will sign the rule, and writ on it, " appearance entered," pay 3s. 6d. take same to one of the judge's chambers, leave it, and pay 2s. Trinity term, in the 57th year of the reign of king George the third. Nix. ats. Doe Law and Markham. And the said Joseph Nix, by J. P. ex dem. of Staples. his attorney, comes and defends the force and injury, when, &c. and says, that he is not guilty of the trespass and ejectment above laid to his charge, in manner and form as the said John Doe hath above thereof complained against him; and of this he puts himself upon the country, &c. How to appear for Part. If there be several persons who claim title, the rule may be drawn generally or particularly; generally, as that J. Š. who claims title to the premises in question should be admitted for such messuages; and this puts a necessity on the plaintiff, to distinguish by proof, what tenements are in each tenant's possession, otherwise he can have no verdict. But if the rule be drawn specially, that supersedes the necessity of proof that the lands are in his possession. Buller, 95. By rule, T. 15 Car. 2. It is ordered, that in every action of trespass and ejectment, where the defendant, by the rule of the court, shall confess lease, entry, and ouster, for so much of the premises in the declaration mentioned, as are in the possession of the said defendant, or his under-tenants, the attorney for such defendant shall immediately deliver to the plaintiff's attorney, a certain note in writing of the tenements so being in the possession of the defendant, or his under-tenants. This mode is not now adopted, but instead thereof the premises defended for, are specified in the margin of the rule, and at the end thereof say, part of the premises mentioned in the declaration; which makes the rule special. But still the old mode may be adhered to, by giving a particular notice what you mean to defend for. to plaintiff's attorney. But the other way saves the proof of such notice at the trial. When the appearance is for part, the plaintiff having If appearance obtained the rule for judgment against the casual ejector, for part. may sign his judgment for the residue against the casual ejector. Of Appearance by the Landlord. As the tenant in possession of the premises cannot be Landlord emcompelled to appear aud enter into the common rule to powered to become defendant instead of the casual ejector, so neither make himself defendant, &c could the landlord alone, and without joining the tenant, enter into such rule, and be made sole defendant, whereby great inconveniences happened through the obstinacy of tenants; it is therefore provided by stat. 11 Geo. 2. c. 19. that if the tenant shall refuse to appear, judgment shall be signed against the casual ejector for want thereof; but if the landlord of any part of the land, &c. shall desire to appear by himself, and consent to enter into the like rule that the tenant, in case he had appeared, ought to have done, then the court shall permit such landlord so to do, and order a stay of execution upon such judgment against the casual ejector, until they shall further order therein. By this statute it is provided, that the landlord may Construction make himself a defendant, though the tenant refuses to of the act. appear and though judgment is signed against the casual ejector, the court will order a stay of execution until they make a further order. made defen The landlord appeared without the tenant, and after a A landlord verdict for the plaintiff, he brought a writ of error, upon dant without which the plaintiff moved to take out execution; which his tenants the court refused to grant; for though it is left to their may bring discretion, yet that can be only a legal one. The act error. intended to put the landlord in the place of the tenant, that he should not be stripped of his possession, by any act of the tenant, and it ought to be considered as if the tenant had brought error, which would undoubtedly be a supersedeas. This court cannot take upon them to judge whether there is error in the proceedings or not. Jones v. Edwards, Str, 1241. If a judgment be against the landlord, and the plaintiff If motion to move for leave to take execution against the casual ejec- cution against tor, if the landlord bring error, the day for shewing cause casual ejector against this rule, is the proper time of doing, and he after verdict be made land- may shew the writ of error for cause; otherwise the rule ford must then will be absolute, and he cannot open the matter again. George dem. Bradley v. Wisdom, 2 Burr. 756. shew cause. Heir and lord. Cestui que trust not per mitted, not having been in possession instead of the tenant, as landlord. Heir. Who are considered as Landlords. In ejectment for a chapel, the parson can only defend for a right to enter and perform divine service. Str. 914. No man is to be admitted tenant or defendant in ejectment by the common rule, unless he has been in possession or received rent, and not a mere stranger. Lord Holl. Comb. 209. If ejectment is brought by one claiming as heir of a copyhold, and the lord of a manor, who claims by escheat, pro defectu hæredis, applies to be admitted to defend with the tenant in possession or alone; the court will direct the lord to bring ejectment against the heir, and the heir to be admitted to defend with tenant, or alone: if the lord refuses, they will discharge his rule to be admitted; if the heir refuses, they will admit the lord to defend. Fairclaim v. Shamtille, 3 Burr. 1290. He who claims title shall be joined as a defendant though plaintiff opposes it; 1 Salk. 256.; though she is wife to the lessor, 257. Rule why cestui que trust should not be admitted to defend was opposed, on a ground that they had never been in possession, and could not be considered as landlords. Lord Kenyon-If the person requiring to be made a defendant under the act had stood in the situation of immediate heir to the person last seized, or had been in the relation of remainder-man under the same title as the original landlord, I am of opinion he might have been permitted to defend as a landlord, by virtue of the directions of the statute; but here the very question in dispute between the adverse party and himself is, whether he is entitled to be a landlord or not; and therefore we are not authorised to extend the proviso of the statute in such a case as this. Rule discharged. Lovelock v. Doncaster, 3 Term Rep. 783. The reporter has taken it, that the devisees applied, but he corrects it in 4 Term Rep. 122, and says the cestui que trust. The court permitted an heir who had never been in possession to come in and defend the ejectment: the father under whom he claimed died just after having first obtained a similar rule. Doe dem. Thistlewaite v. Roe, 4 Term Rep. 122. An affidavit must be made to ground this motion. J. E. Wright, devisee in trust, was admitted to defend Devisee in as landlord. Motion was made to discharge that rule. trust. Lord Kenyon asked the counsel for the rule, whether he would consent to try it in an issue, " devisavit vel non ;" and on his refusal, discharged the rule. Lovelock v. Doncaster, 4 Term Rep. 122. The court permitted a mortgagee to be made defend- Mortgagee. ant with the mortgagor. 8 Term Rep. 645. Doe v. Cooper. Lord Bath, the reversioner, was admitted a co-defend- Reversioner. ant with the tenant. Comb. 339. So a devisee in trust, 2 Term Rep. 122. How to appear for Landlord. Give brief to counsel for him to move that the landlord Landlord's may be made defendant with the tenant; if he appears; rule. and if the tenant does not appear, then that he may appear by himself, and enter into the common rule, and defend his title. When the landlord desires to be made a party to defend the title of the land in question, together with the tenant in possession, the court will grant it, so that he will enter into the rule to confess lease, entry, and ouster, and at the trial, confess, &c. and insist upon the title only. Sty. P. R. 442. N. B. This is done by a counsel's band, for the land- How to prolord in possession without any affidavit, fee 10s. 6d. draw ceed. up the rule at the clerk of the rules, pay 10s. 6d. make a copy and annex it to the plea; add also the common consent rule thereto, in which insert the landlord's name defendant, (and if he appear with the tenant, his name also must be inserted); file appearance or common bail, as the action is, with the memorandum on a 5s. stamp, and leave plea at the judge's chambers, with the copy of the rules annexed. The landlord's rule further is, that the plaintiff be at The landlord's liberty to sign judgment against the casual ejector, but rule further is. execution is stayed, until the court shall further order. Therefore where the landlord is permitted to defend How to prowithout the tenant, judgment is always signed by default ceed. against the casual ejector; the reason of which is, that If landlord without the tenant. When landlord is made defendant, plaintiff must prove his (the defendant's) tenant in pos session. So if tenant under it, the plaintiff, if he obtain a verdict, may get possession of the premises, which he could not do, by virtue of a judgment against a person out of possession. If the landlord appears without the tenant, sign judgment immediately against the casual ejector, as before, then proceed to make up the issue against the landlord, taking the copy of the rules annexed to the plea, to the clerk of the rules, who will make office copies of same, annex copies to the issue to be delivered, and if upon the trial, plaintiff obtains a verdict, he must move on the production of the postea and office copies of the two rules, for liberty to take out execution against the casual ejector; it is a rule to shew cause; fee to counsel 10s. 6d. which serve, and then proceed to make it absolute as in other cases. It is necessary to prove the defendant or his tenant in possession of the premises; for the rule is, that the landlord shall defend for the premises only whereof his tenants are in possession, and the party does not admit himself to be landlord of any premises which the plaintiff may make title to, but of such only as were in possession of those tenants. Smith dem. Taylor v. Mann, 1 Wils. 220. This case is confirmed by a new determination, Goodappears only. right v. Rich, 7 Term Rep. 327. and now, even where the tenant is made defendant, and enters into the common rule, the lessor is bound at the trial to prove the tenant in possession of the land, &c. claimed. Ibid. If verdict for plaintiff. Judgment against casual ejector set aside, landlord having no notice of ejectment from his tenant, The day for shewing cause why execution should not be taken out against a casual ejector, is the proper time for the landlord to resist it; if he brings error, he must then shew that for cause. Edwards v. Edwards, 2 Burr. 757. If he omits so to do, the execution will be regular (although error be sued out and allowed, previous to the motion). George dem. Bradley v. Wisdom, Ibid. 756. Barnes, 182. If a judgment be signed against casual ejector, the landlord may move to set it aside, on the ground of his tenant's not having given him notice. And the court will make such a rule on the ground that the possession ought not to be changed where there had been no trial or opportunity of trying, though obtaining the judgment might be owing to the default, or even treachery of the defendant's own tenant. But if the plaintiff had not been guilty of any collusion with the tenant, they thought it reason |