session must be either on the land in question, or at the dwelling house of the husband. In this case, from the fact of the wife being served, on the premises", or at the dwelling house of the husband, though not on the premises, the court presumes that the parties are living together as man and wife, and that the husband has notice of the proceedings; and on this presumption, such service is deemed good. Service on the servant, child, or niece, of the tenant in possession, on the premises, is good service, provided the service be afterwards acknowledged by the tenant himself, and it appears that he has received it before the essoign day°; but a mere acknowledgment of the wife is not sufficient P. If the tenant or his wife refuse to receive the declaration, &c. a copy of it should be left for them, or affixed to the premises; so if there be not any person in possession of the thing demised, a copy of the declaration and notice should be affixed to some conspicuous part. Where there is any thing unusual in the manner of serving the declaration, it should be mentioned to the court on moving for judgment against the casual ejector; and if the court should be satisfied that the tenant has had notice of the declaration, they will make the rule for judgment absolute in the first instance; if doubtful, they will grant a rule requiring the tenant to shew cause why the service should not, under the special circumstances, be deemed sufficient, and they will prescribe the mode of serving the rule 9. VIII. Of the subsequent Proceedings- Judgment against casual Ejector-Appearance of Defendant-Consent Rule-Stat. 11 G. 2. c. 19. s. 13. enabling Landlord to defend. If the tenant in possession does not appear according to the notice subscribed, and enter into a rule, called the consent rule, the plaintiff may, at the beginning of the term in which the tenant in possession ought to have appeared, move the court for judgment against the casual ejector. Before this motion can be made, a rule to plead must be given ', and the motion itself must be founded on an affidavit of service of declaration, either on the tenant in possession, or in such manner as shall satisfy the court, that the tenant in has had notice of the proceeding. possession The time for appearance depends on the situation of the premises. 1. Where the Premises lie in London or Middlesex. The tenant in possession must appear within four days, inclusive, next after the motion for judgment, if such motion be made at the beginning of the term. But where it is in a more advanced stage of the term, the court will exercise their discretion, and order the tenant to appear immediately, or within one or two days, so that the plaintiff may give notice of trial within the term. If the motion for judgment is made within the last four days of the term, the tenant has until two days before the essoign day of the subsequent term to appear in. 2. Where the Premises lie elsewhere than in London or Middleser. The motion for judgment in this case may be made at any time within the term; because the tenant has four days after the end of such term to appear in. If the lands lie in a county', where the assizes are holden only once a year, the tenant has four days after the end of the term next preceding the assizes to appear in. If the tenant in possession does not appear within the limited time, the plaintiff must search for a plea, and if he does not find any, he must procure from the clerk of the rules in B. R. and secondary in C. B. a rule for judgment by default against the casual ejector (25), which he must carry r R. T. 19 Car. 2. B. R. Impey's Pr. B. R. (25) By an old rule of court M. 33 Car. 2. 1681, B. R. it was required that a writ of latitat should be sued out against the casual ejector, and common bail filed for him before judgment could be signed. But now filing common bail is sufficient. to the clerk of the judgments in B. R. and prothonotary in C. B.. who thereupon will sign judgment, and make out a writ of possession, which, being delivered to the sheriff, the plaintiff will be put into possession of the premises in question. If the tenant appears, then he enters into the consent rule, the substance of which is as follows: 1st, He consents to be made defendant instead of the casual ejector. 2d, To appear at the suit of the plaintiff'; and if the proceedings are by bill, to file common bail. 3rd, To receive a declaration and plead, Not Guilty. 4th, At the trial of the issue, to confess lease, entry, and ouster, and insist upon title only. To this rule are added the following conditions: 1st, If at the trial (26) the defendant shall not confess lease, entry, and ouster, whereby plaintiff shall not be able to prosecute his suit, defendant shall pay to plaintiff the costs of the nonpros, and judgment shall be entered against the casual ejector by default. 2d, If a verdict shall be given for defendant, or plaintiff shall not prosecute his suit for any other cause than the non-confession of lease, entry, and ouster, the lessor of the plaintiff shall pay costs to the defendant. In the court of C. B. the defendant consents to confess lease, entry, and ouster, of so much of the tenements specified in the plaintiff's declaration, as are in the possession of the defendant or his tenants; but, in the common consent rule of the court of B. R., the defendant consents to confess lease, entry, and ouster, generally. On the ground of this variance, it was insisted in B. R., that it was unnecessary to prove defendant in possession of the premises, because, by entering into the rule generally, defendant must be understood to have admitted himself tenant in possession of the premises described in the declaration. But the court were of opinion, that whether the defendant entered into the con t In C. B. a warrant of attorney must accompany the other papers. (26) The practice is to call the defendant to confess lease, entry and ouster; and on non-appearance, or refusal to comply with the rule, to call the plaintiff and nonsuit him; then the cause of the nonsuit being indorsed on the postea, the plaintiff is entitled to judgment and execution thereon immediately after the trial, according to the practice of the court of C. B. (Fairfax v. Bentley, C. B. Runn. 242. edit. 1795.) but in B. R. not until the postea be regularly returned on the day in bank. (Lord Palmerston v. Copeland, 2 T. R. 779.) Where there are sent rule of C. B"., or the general rule in B. R., it was essen tially necessary to prove, that the defendant was in possession of the premises in question. N. The defendant may even in the court of B. R. narrow his consent to confess lease, entry, and ouster, to so much of the tenements specified in plaintifi's declaration, as are in possession of defendant or his tenants. But if he does, his attorney must immediately deliver to the plaintiff's attorney, a note in writing of the tenements so being in possession of the defendant or his under-tenants. Such are the proceedings when the matter is litigated between the lessor of the plaintiff and the tenant in possession only. Where the tenant in possession is merely an undertenant to some other person, as soon as the declaration in ejectment is delivered to him, he is obliged, by stat. 11 Geo. 2. c. 19. s. 12. to give notice of such delivery to his landlord, under pain of forfeiting three years improved or rack rent of the premises holden. N. This penalty does not attach on the tenant of mortgagor, who omits to give him notice of ejectment brought by mortgagee, 1 T. R. 647. because the statute only extends to cases where ejectments are brought inconsistent with landlord's title. This wise provision of the statute was intended to prevent fraudulent recoveries of the possession, by collusion with the tenant of the land. And by the same statute, s. 13. the court where the ejectment is brought, is empowered to suffer the landlord to make himself defendant with tenant, if he shall appear; and, by the same clause, although if the tenant shall refuse or neglect to appear, judgment shall be signed against the casual ejector; yet the landlord shall be permitted to appear by himself, on his consenting to enter into the usual rule; and judgment against the casual ejector shall be staid until further order. a Goodright d. Balch v. Rich, 7 T. R. 227. x R. T. 15 Car. 2. B. R. y Landlord might have defended with tenant before this statute, Salk. 257. 7 Mod. 70. 3 Burr. 1301. But the 2d provision in this section is new. z See Jones v. Edwards, Str. 1241. several defendants for the same premises, and some appear and confess lease, entry, and ouster, but others do not, the practice is, to enter a verdict generally against those who do appear, and to enter a verdict against the plaintiff for those who do not appear; but then the cause of such verdict is indorsed on the postea, which as to them intitles the plaintiff to judgment against the casual ejector for such lands as were in their possession. Lord Raym. 729, Who shall be considered a landlord, within the meaning of this act, is sometimes a difficult question to determine: the following persons have been so considered; 1. Devisee in trust, 4 T. R. 122. 2. In Doe d. Tilyard v. Cooper, a mortgagee under the defendant was permitted to defend with him." The following persons have not been deemed landlords within the meaning of this act: 1. A devisee, where the ejectment was brought by the heir; Roe d. Leake v. Doe, M. 29 G. 2. C. B. Bull. Ñ. P. 95. 2. A mortgagee, who had never received rent, ib. 3. Cestui que trust, not having been in possession. 3 T. R. 783. In all cases of vacant possession, unless such as are within stat. 4 Geo. 2. c. 28. (which see in next section) no person claiming title will be let in to defend; but he, who can first seal a lease on the premises, must obtain possession, and any other person claiming title may eject him if he can; and by the course of the court, no defence can be made in these cases but by the defendant in the ejectment, who is a real ejector. In Martin v. Davis, Str. 914. the court refused to let the parson of Hampstead chapel defend for right to enter and perform divine service only; notwithstanding the case of Hollingsworth v. Brewster, Salk. 256. observing, that that case had often been denied since. IX. Of the Proceedings in Ejectment, directed by Stat. 4 G. 2. c. 28. s. 2. in order to obviate the Difficulties attending Re-entries at Common Law, for Non-payment of Rent ArrearOf the Proceedings where the Possession is 66 vacant. By stat. 4 Geo. 2. c. 28. s. 2. it is enacted, "That in all cases between landlord and tenant, when half a year's rent "shall be in arrear, and the landlord has a right of entry for non-payment thereof, he may, without a formal demand or a 8 T. R. 645. Arg. per Eyre, Serj. and said by the VOL. II. D tice. Exp. Beauchamp, Barnes, 4to. edit. 177. |