Of appearing in Ejectment. The form of the confent rule in C. B. is as follows: Michaelmas term, in the twentieth year of king George the third. Middlefex, to wit. Den It is ordered, by confent, O. P. against Fen, for four mef- attorney for the plaintiff, and fuages, four barns, four I. M. attorney for John Bull, who ftables, &c. with the ap- claims title to the premises in purtenances, in the pa- queftion, that the faid John Bull rifh of St. Mary, Ifling-fhall be admitted defendant; and ton, in the county of Middlefex, on the demife of William Smith. that the faid John Bull fhall immediately appear by his faid attorney, who fhall receive a deJclaration, and plead thereto the general iffue this term; and at the trial to be had thereon, fhall appear in his proper perfon, or by his counfel or attorney, and confefs the leafe, entry, and oufter, of fo much of the tenements specified in the plaintiff's declaration, as are in the poffeffion of the said defendant, or his tenants, or any perfons claiming by or under his title; or that in default thereof, judgment fhall be thereupon entered against the defendant Richard Fen, the cafual ejector; but proceedings fhall be ftayed against him, until default fhall be made in any of the premiffes: And by the like confent, it is further ordered, that if, by reafon of any fuch default, the plaintiff fhall happen no be nonfuited upon the trial, the faid John Bull fall take notice thereof, but fhall thereupon pay to the plaintiff, ccfts to be taxed by the prothonotary. And it is further ordered, that the lef for of the plaintiff fhall be liable to the payment of cofts to the faid John Bull, by the court here to be in any manner allowed or adjudged By the court. O. P. attorney for the plaintiff. Of appearing in Ejectment. If the defendant enters into the common rule, to confefs leafe, entry, and ouster, for a part of the premises only, his attorney fhould give notice to thé, plaintiff's attorney, of what premises he means to defend in this manner: In the King's Bench. Sir, Take notice, that I defend for a meuage or tenement, a garden and stable, [fpecifying the particular premifes], fituate in the parish of St. Mary, Iflington, now in the poffeffion of the faid John Bull, or his under-tenant.. Dated this 1780. day of Yours, &c. 1. M. defendant's attorney, To Mr, O. P, plaintiff's attorney, Of appearing in Ejectment. A tenant is not obliged to appear in ejectment, though the landlord is ready to indemnify him. Barnes 173. In C. B. it was moyed, that the landlords, viz. A. B. and C might be made defendants without the tenant in poffeftion, who refufed to appear. But the motion was denied, and the common rule was made to add the landlords to the tenants in poffeffron. Barnes 172. Motion, that Mr. P..who claimed title, might be made defendant, inftead of the late tenant, who quitted poffeffion, denied. Barnes 175. Motion, on affidavit that the tenant in poffeffion was a material witnefs for the landlord, that therefore the landlord might be made a defendant, in the room of the tenant in poffeffion. Objected, that it was never done, and it would". not make him a witnefs when done. And per cur. He is liable for the mefne profits. The declaration is regularly delivered to the tenant in poffeffion. It was never done in this court. Bourne v. Turner. Stra. 632. On motion for the landlord, to defend upon the ftatute of 11 Geo. 2. the court objected, that this motion could not properly be made, till after judgment figned against the cafual ejector; and that an affidavit ought to be produced of the tenant's refufal, or neglect to appear. To which it was answered, that after judgment figned against the casual ejector, the plaintiff might take poffeffion. But the court held the affidavit to be neceflary, and made no rule, declaring, that the intent of figning judgment against the cafual ejector was only, that the plaintiff, after having tried his caufe against the landlord, [the tenant not being a party] might have the benefit of his verdict, and take poffeffion under the judgment, which under fuch verdict he could not. It seems reasonable [upon a proper affidavit] to grant a rule to fhew caufe, before judgment against the cafual ejector can be figned, to prevent the ill confequences of taking poffeffion immediately after. Barnes' 179. It was moved on the ftatute II Geo. 2. that the landlord might be added defendant to C. D. one of his tenants, who appeared to defend the premifes in his poffeffion; and that as to the refidue of the premifes contained in the declaration, in the poffeffion of T. M. another tenant, who refused to appear, as per affidavit] the landlord might appear and defend fingly; and that the plaintiff might fign judgment against the cafual ejector, as to the tenants in poffeffion of T. M. Of appearing in Ejectment. T. M. but that the writ of hab: fac. p. be ftayed till further orders. Barnes 179. A regular judgment had been fairly obtained against the cafual ejector, the tenant having neglected to give notice to his landlord, for which reafon, the landlord moved to fet afide the judgment. The landlord was an infant, and therefore could not confent to any iffue, The court held," that the poffeffion ought not to be changed, where there.. had been no trial, nor opportunity of trying, and ordered, that the tenant in poffeffion fhould pay the cofts, That the regular judgment and writ of poffeffion fhould be fet afide, that, the landlord be made defendant, and not to fet up any fatisfied term or truft eftate; and to admit that Z. T. was feized. Burr. 4 pt. 1996., Where the landlord is made defendant, the plaintiff must prove the landlord tenant in poffeffion of the premises in queftion. 1 Wilf. 220. A landlord was made defendant, according to the 11 Geo. 2. c. 19... 13. on the tenant's non-appearance, and entering into the common rule; and thereupon a stay of execution was ordered, until the court fhould make further order. Burr. 4 pt. 757. If a writ of error is brought by the landlord, it is a fuf-. ficient reafon against taking out execution. Ibid. But the proper opportunity for the landlord, to make his ftand against the exccution, is by fhewing this as cause against the plaintiff's motion for leave to take it out. Ibid. And if he omits this opportunity, the execution regularly iffued fhall not be fet afide. Ioid. A landlord made defendant without his tenant, may bring error, and stay execution. Stra. 1241. When the rule for judgment against the cafual ejector is out, the plaintiff's attorney muft fearch at the chambers of the refpective judges in B. R. for the defendant's plea, [in cafe he has appeared] and confent rule. To which, after the judge, with whom it was left, has figned it, and the plaintiff's attorney given a receipt for the fame, he figns his name over the defendant's attorney, and then carries it to the clerk of the rules, who files it, and draws up the confent rule from it on ftamp, for which he is paid 6 s. of which rule the plaintiff's attorney makes a copy, and annexes the fame to the iffue, when delivered to the defendant's attorney for trial. But in C. B. when the defendant. has appeared, and left the confent rule in the prothonotary's office, Of appearing in Ejectment. office, the plaintiff's attorney reforts there for it; and having figned his name over that of the defendant's attorney, he gets two rules from it, drawn up by the fecondary on tamps, one for each party, for which he pays 7 s. and then the plaintiff's attorney makes up the iffue, and delivers a copy thereof, with notice of trial on the defendant's attorney. And proceeds to trial as in other cafes. Note: If the plaintiff proceeds in ejectment by original, he does not fue out his original writ at firft, but proceeds by delivering his declaration as by bill; but if a writ of error fhould be brought, he muft fue out his original writ, which must be returned by the sheriff, and filed on the treafury; or if the tenant has not appeared, the original must be fued, returned, and filed properly; and if he has appeared, then, on fuing out the original, you must infert his name, instead of the nominal defendant. The appearance, when by original in B. R. is entered with the filazer, in like manner as it is in other fuits by original; and the writs are made out returnable on a general I return day, as in other cafes. The precipe for the curfitor, to make out the original writ by, is as follows;" Middlefex, to wit. If John Den fhall make you fecure, &c. then put, &c. Richard Fen, late of, &c. that. he be before our lord the king, on wherefoever, &c. to fhew wherefore, with force and arms he entered into four 'meffuages, &c. [reciting the premifes] with the appurtenances in the parish of St. Mary, Iflington, in the county of Middlefex, which William Smith demifed to him for a term, which is not yet expired, and ejected, &c. and other enormities, &c. against the peace, c. and to the damage, &c. |