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Of moving' for Judgment against: the-casual
Ejector. "" « >.'. •.';• •" - - . .•'' '•. '..;'.,- *'.•.
The ruie for_judgment against the casual-eje'si'of is drawn out in the following manner in the respective courts,
In B.k. 'inC.'Br
Saturday next, aster eight days Hilary, the twentieth of king of the purification of the hies- George the third.
fed virgin Mary, in the
twentieth year of the reign of Den against 1 Twelfth day of king George the third, Fen, the ca- e February, upon
fual ejector. 3 the affidavit of
Den on the-t Unless 'John John Thomas, gent. it is ordemiseof I Bull, the tenant ,'dered, That unless John Bulk Smith, tfq. > in possession of tenant in possession of the against \ the premises in Fen. J question, shall
appear and plead to illue on
Thursday next, after the end
of the term, let judgment be
entered for the plaintiff,
against the now desendant
Fen, by desault. And in the
mean time proceedings to
stay, upon the motion of Mr.
Let the rule be entered
By the court.
tenements in question, or any other person concerned in the title thereof, on Saturday next shall appear by an attorney of this courr, who shall theji forthwith receive a declaration, and plead thereto the general issue, and consent to the common rule for consessing lease, entry, and ouster, upon the trial to be had. Let judgment against the casual ejector be entered, and in the mean time proceedings are to stay upon the motion of Mr, ;Serjeant
.-.••••.• iiy the court
• • "- ' • Father gill.
By Reg. Hil. 2 Geo. 2. in C. B. No declaration in ejectment shall be taken or received by the secondary, unless signed by some serjeant at law, an.d delivered by-himself to the iecondary in. open court. . *>'
And by the same rule, the secondary shall, the' morning next after the end of every term, arid at all other times when required, shew to any other person, who snail demand the same, his alphabetical paper of ejectments, Moved or delivered into court in each term. .•
•' - . • *
'4 \ '' . Of appearing in Ejectment;
BY the 11 Geo. 2* c. 19. s. 12. Tindnf's'zre obliged to give notice to their landlords, of a declaration in ejectment . being delivered, under pain of forseiting three^eirs improved or rack rent of the premises so* held and enjoyed by the tenarft. '.»•..
And as the tenant in possession-could not be compelled to appear and enter into the common rule, to become desendant instead of the casual ejector; so neither could.the landlord alone, without joining with the tenant, enter into such rule, and be made sole desendant.. But to remedy this inconvenience, by • sect. 13. of the same statute, it is enacted, ," That it may be lawful- for the court where sueh ejectment shall be broughr, to susses the landlord to make himself desendant, 'by jd'ning with the tenant, in cafe he should'appear; but in caff such tenant shall'neglect o'r resuse to appear, judgmeivt shall be signed against-the • tasual'ejeflir,% for-want of such appearance: but if the landlord, 6fc.' of any 'part of the lands, fsV . for which such ejectment was brought, shall desire to appear by himselfj arid consent Uvenrer into the like' rule, that by the course of the-court, the, tenant in- possession, in case be or she had appeared, ouo"ht to have done; then the court, where such ejectment shall be brought," /ball' a-nd may permit such landlord -so to do; and.order a stay of execution upon >such judgment, against' the cafual ejector, until they shall rnake surther or^er therein,"
Note: Under this act, no one but a landlord; can be made a desendant, Bull. Ni. Pri. 95. that is, a person whu is in some .degree of possession, as in' receiving rent, &c ' Suppl. to Bar At s 29.
Therefore",- where a .'man devised h!$ estate ko jf, S. and the heir bcoUgn't" an" ejsctinenuagalrfst-trieaenant in possession, the Cburt,' on motion, held,.that J. S. could n6t.be made a desendant". . Roe ex dim. Leake v. Doe. Mich. . 29 Geo. 2. C-'£- In like manner a mortgagee,' who had never received the rents, was resused to be admitted a de-. sendant with the tenant. ' Jones ex dem. IVoodiuard v. Williams.- Tr. 15 Geo. a. •' ••"
But a lord claiming by "escheat, was admitted to desend. Burr. 4 pt. 1296.
When the rule to plead is out, and no plea and rule left by the tenant, for which you must search all the judgesbooks in B. R■- if the ejectment is by bill; and if by ongi'nal, the filtmsr's office; ..or if in C. B\ the prstkonotary's
. M 2 'plea
i64 ••• .•.. ©f lament.. •
'"».''.•' * • .' * .
Of appearing in Ejectment.
plea-book; you rngross your declaration on a double halt . crown stamp; and on the roll draw up the rule against the cafual ejector, for judgments and then carry the same to the clerk of the judgment/ in B. R. who, on producing the • rule,. Will sign the judgment, for which you pay 31. 6d. v or if in C. 2i. it must be carried to the prothonotiry, who will sign the judgment; and then you enter up the judgment by nil dicit on the roll, and then take out an habcrt facias pofsesfionem. .. .' •• .
Note: If judgment- is signed against the casual ejector, without the tenant of the premises coming in to desend, execution cannot be taken out to turn the tenant out of possession, without leave of the court on■motron; on-which a rule to shew cause will be granted. .* . % ■
An attorney cannot appear for the tenant in possession in ejectment, by order of the landlord. Barnes 39. » -.''
But if the tenant has resused to appear, .and. tticrlahdltrd, according- to the 11 Geo. 2. c. 19. would wish to defend, he must apply to the court for that purpose', on an affidavit of the tenant's resusal; and a copy of the rule for that purpose, when obtained of the clerk of the rules in B. R. or secondary in C. B. must be annexed to the plea and consent rule. •" y * - .' *. \ • ._ "*•; '."'•..
The affidavit of the tenant's resusing to desend an ejectment, in order to have the landlord admitted -'desendaiit, is 'as follows:' * •
In the King^s Bench* '•\
. X John Den on the demise of Between S William Smith, plaintiff, and , ... (.Richard Fen%. desendant.
A. B..of, ££<r.mafceth oath,- that he this deponent, did, on the day of last, by the di
rection of T/ximas Hodgson, esquire, landlord of the premises in question, in this caused apply to John . Bully tenant in possession of the same" premises, to know whether [he the said John Bull would appear and become desendant in this cause; or would permit the said Thomas Hodgson to desend his title to the said premises, in the name of the said John Bull; and this deponent, at the same time, shewed and offered to deliver to the said Jthn Bull, a note, signed by the said Thomas Hodgson, whereby the said Thomas Hodgson promised to defend and keep the
Os appearing in Ejectment.
said John Bull of, from, and against all costs and '.charges in this cause; and the said John Bull told this deponent, that he would not appear and become desendant in this cause, or any way concern himself therein. .t:'..' '.-''t'
Sworn, S$c. .' > .A^lB.
Upon this affidavits.tht landlord may appear and desend 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 consent rule from a stationer, unstamped, or from they*condary in C. B. then fills it up, making the tenant or landlord desendant, instead of the casual ejeclor, entitling the cause in the margin, and inserting the premises, as described in the declaration, or such part thereof as the party would wisti to desend; then the attorney for the desendant signs his name at the bottom, leaving a blank space for the plaintiff's attorney to do the like, [for this is rather an agreement between the parties, than the rule itself, which is drawn out by the officer] and engrosses she general issue on stamped paper, and afterwards annexes the same to the rule; [and if there is :a rule to admit the landlotd. desendant, the tenant having resused, annex that also] 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 thefilazer, who will mark it; or if in C.B.. enter. appearance with the properftlazer, who.will stamp the. rule; which being done there, if the proceedings are in B. R. you carry and leave this rule, &ci at any of the judges chambers; or if in C. B. you carry a«d*ieave the same with the-'prothonotary.
Of appearing in Ejectment.
The form of the consent rule in B. R. is as follows:
Michaelmas terai, in the .twentieth year of king Georgt - > • the third..
Middhfex. Den, on the~) It is orderrd, by consent of the
attorn es of both parties, that jW* 2?«'//>[the . tenant or lanJ
demise of Smith, of (our ineifua^es, four barns
four stables, fifty acres of lord, as the case is] be made deland,. fifty acres. of ara- 'sendant, in the ste^d of the now We, fifty acres o/ pasture, desendant Richard Fen, and do twenty -acres of wootl, I appear forthwith at the suit of and twenty acres .'of'unx/the plaintiff, andJil( common bail, derWood, with the ap-. [if by original, leave. out these purtenances, •situate 'in' words] and receive-a declaration
the parish of St. Mary, Islington, in the county ef Middlesex.
in an action of trespass and ejectment, for the premises'in question in this caui's, ah'd forthwith plead thereto,'-not'guilty; and upon the trial of the issue, consess lease, eritfy, and ouster, and insist upon the title only; otherwise, let judgment be entered for the plaintiff, against the now defendant Richard Fen, by default; and if, upon the trial 05s the issue, the -said 'John Bull, shall not consess lease, entry, and .ouster, whereby the plaintiff shall not be able surther. to. prosecute his. bill [or if by original, his writ] against the said John Bull, tfæn no costs shall be allowed for not prosecuting the same; but the said John Bull shall pay Æosts to the plaintiff in that case, to be taxed. And it is. surther ordered, that if upon the trial of the said issue, a verdict should be given for the said Joh;i Bull, or it shall happen,that the plaintiff shail not further prosecute his said bill [or writ], for any other cause than for not consessing lease, entry, and.ouster, then the lessor-of the plaintiff, shall pay to the- said Jthn Qull his costs in that behalf to'be adjudged
By the court.. .
O.P. for the-lessor of the plaintiff.