Of moving for Judgment against the cafual

Ejector.

The rule for judgment against the cafual ejector is drawn out in the following manner in the refpective courts,

In B. R.

Saturday next, after eight days of the purification of the bleffed virgin Mary, in the twentieth year of the reign of king George the third,

Den on the Unless John
demife of Bull, the tenant
Smith, fq.
in poffeffion of
againft the premises in
Fen. queftion, fhall.
appear and plead to iffue on
Thursday next, after the end
of the term, let judgment be
entered for the plaintiff,
against the now defendant
Fen, by default. And in the
mean time proceedings to
ftay, upon the motion of Mr.
Bond.

In C. B.

Hilary, the twentieth of king
George the third.

}

Twelfth day of February, upon.

Den against Fen, the ca•fual ejector. the affidavit of John Thomas, gent. it is ordered, That unless John Bull, tenant in poffeffion of the tenements in queftion, or any other perfon concerned in the title thereof, on Saturday next fhall appear by an attorney of this court, who fhall then forthwith receive a declaration, and plead thereto the general iffue, and confent to the common rule" for confeffing leafe, entry, and oufter, upon the trial to be had. Let judgment against the cafual ejector be entered, and in the mean time proBy the court. ceedings are to stay upon the motion of Mr. Serjeant Walker.

Let the rule be entered

By the court

Fothergill.

By Reg. Hil. 2 Geo. 2. in C. B. No declaration in ejectment fhall be taken or received by the fecondary, unless figned by fome ferjeant at law, and delivered by himself to the fecondary in open court.

And by the fame rule, the fecondary fhall, the morning next after the end of every term, and at all other times when required, fhew to any other perfon, who fhall demand the fame, his alphabetical paper of ejectments, moved or delivered into court in each term.

Of

Of appearing in Ejectment.

Y the 11 Geo. 2 c. 19. f. 12. Tenants are obliged to give notice to their landlords, of a declaration in ejectment being delivered, under pain of forfeiting three years improved or rack rent of the premifes fo held and enjoyed by the

tenant.

And as the tenant in poffeffion could not be compelled to appear and enter into the common rule, to become defendant inftead of the cafual ejector; fo neither could the landlord alone, without joining with the tenant, enter into fuch rule, and be made fole defendant.. But to remedy this inconvenience, by fec. 13. of the fame statute, it is enacted," That it may be lawful for the court where fuch ejectment fhall be brough, to fuffer the landlord to make himself defendant, by joining with the tenant, in cafe he should appear; but in cafe fuch tenant hall neglect or refufe to appear, judgment fhall be figned against the cafual ejector, for want of fuch appearance: but if the landlord, &c. of any part of the lands, &c, for which fuch ejectment was brought, fhall defire to appear by himself, and confent to enter into the like rule, that by the courie of the court, the tenant, in poffeffion, in cafe be or the had appeared, ought to have done; then the court, where fuch ejectment. fhall be brought, fhall and may permit fuch landlord fo' to do; and order a ftay of execution upon fuch judgment, against the cafual ejector, until they fhall make further order therein,"

Note: Under this act, no one but a landlord, can be made a defendant, Bull. Ni. Pri. 95. that is, a perfon who is in fome degree of poffeffion, as in receiving rent, &c. Suppl. to Barnes 29.

Therefore, where a man devised his eftate to J. S. and the heir brought an ejectments against the tenant in poffeffion, the court, on motion, held, that . S. could not be made a defendant. Roe ex dem. Leake v. Doe. Mich. 29 Geo. 2. C. B. In like manner a mortgagee, who had never received the rents, was refused to be admitted a defendant with the tenant. Jones ex dem. Woodward v. Williams. Tr. 15 Geo. 2.

But a lord claiming by efcheat, was admitted to defend. Burr. 4 pt. 1296.

When the rule to plead is out, and no plea and rule left by the tenant, for which you must fearch all the judges books in B. R. if the ejectment is by bill; and if by original, the filazer's office; or if in C. B. the prothonotary's

M 2

• plea

Of appearing in Ejectment.

plea-book; you ingrofs your declaration on a double halfcrown ftamp; and on the roll draw up the rule against the cafual ejector, for judgment, and then carry the fame to the clerk of the judgments in B. R. who, on producing the rule,, will fign the judgment, for which you pay 3 s. 6 d. or if in C. B. it must be carried to the prothonotary, who will fign the judgment; and then you enter up, the judgment by nil dicit on the roll, and then take out an habere facias poffeffionem,

Note: If judgment, is figned against the cafual ejector, without the tenant of the premises coming in to defend, execution cannot be taken out to turn the tenant out of poffeffion, without leave of the court on motion; on which a rule to fhew caufe will be granted.

An attorney cannot appear for the tenant in poffeffion in. ejectment, by order of the landlord. Barnes 39.

But if the tenant has refused to appear, and, the landlord, according to the 11 Geo. 2. c. 19. would wish to defend, he muft apply to the court for that purpose, on an affidavit of the tenant's refufal; and a copy of the rule for that purpofe, when obtained of the clerk of the rules in B. R. or fecondary in C. B. must be annexed to the plea and confent rule.

The affidavit of the tenant's refufing to defend an ejectment, in order to have the landlord admitted defendant, is as follows:

In the King's Bench.

Between

John Den on the demife of
William Smith, plaintiff, and
Richard Fen, defendant.

day of

laft, by the di

A. B. of, &c. maketh oath, that he this deponent,
did, on the
rection of Thomas Hodgson, efquire, landlord of the
premifes in queftion, in this caufe apply to John
Bull, tenant in poffeffion of the fame premises, to
know whether the the faid John Bull would appear
and become defendant in this caufe; or would per-
mit the faid Thomas Hodgfon to defend his title to the
faid premises, in the name of the faid John Bull;
and this deponent, at the fame time, fhewed and
offered to deliver to the faid. John Bull, a note,
figned by the faid Thomas Hodgson, whereby the faid
Thomas Hodgson promised to defend and keep the

Of appearing in Ejectment.

faid John Bull of, from, and against all cofts and charges in this caufe; and the faid John Bull told this deponent, that he would not appear and become defendant in this caufe, or any way concern himself therein. Sworn, &c.

A. B.

Upon this affidavit, the landlord may appear and defend in like manner as the tenant might have done, and the method of appearing is as follows:

If the tenant or landlord appears, his attorney gets a blank confent rule from a ftationer, unftamped, or from the fecondary in C. B. then fills it up, making the tenant or landlord defendant, inftead of the cafual ejector, entitling the cause in the margin, and inferting the premises, as described in the declaration, or fuch part thereof as the party would with to defend; then the attorney for the defendant figns his name at the bottom, leaving a blank fpace for the plaintiff's attorney to do the like, [for this is rather an agreement between the parties, than the rule itfelf, which is drawn out by the officer] and engroffes the general iffue on stamped paper, and afterwards annexes the fame to the rule; [and if there is a rule to admit the landlord defendant, the tenant having refused, annex that alfo] then file common. bail, if by bill in B. R. with the clerk of the common bails ; and if by original in B. R. enter the appearance with the filazer, who will mark it; or if in C. B.. enter appearance with the proper filazer, who will ftamp the rule; which being done there, if the proceedings are in B. R. you carry and leave this rule, &c. at any of the judges chambers; or if in C. B. you carry and leave the fame with the prothonotary.

Of appearing in Ejectment.

The form of the confent rule in B. R. is as follows:

Michaelmas term, in the twentieth year of king George the third..

Middlefex. Den, on the It is ordered, by consent of the demife of Smith, of four attorn es of both parties, that mefuages, four barns, John Bull [the tenant or landfour ftables, fifty acres of lord, as the cafe is] be made deland,, fifty acres of ara fendant, in the ftead of the now ble, fifty acres of pafture, defendant Richard Fen, and do twenty acres of wood, appear forthwith at the fuit of and twenty acres of un- the plaintiff, and file common bail, derwood, with the ap-[if by original, leave out thefe purtenances, fituate in the parish of St. Mary, Ilington, in the county of Middlesex.

words] and receive a declaration in an action of trefpafs and ejectment, for the preimifes in question in this caufe, and forthwith,.. J plead thereto, not guilty; and upon the trial of the iffue, confefs leafe, entry, and oufter, and infift upon the title only; otherwise, let judgment be entered for the plaintiff, against the now defendant Richard Fen, by default; and rf, upon the trial of the iffue, the faid John Bull, fhall not confefs leafe, entry, and oufter, whereby the plaintiff fhall not be able further to, profecute his bill [or if by original, his writ] against the said John Bull, then no cofts fhall be allowed for not profecuting the fame; but the said John Bull shall pay cofts to the plaintiff in that cafe, to be taxed.'. And it is further ordered, that if upon the trial of the faid issue, a verdict, fhould be given for the faid John Bull, or it shall happen, that the plaintiff fhail not further profecute his faid bill [or writ], for any other caufe than for not confeffing leafe, entry, and ouffer, then the leffor of the plaintiff, fhall pay to the faid Bull his colts in that behalf to be adjudged

John

By the court..

O. P. for the leffor of the plaintiff
I. M. for the defendant.