demurrer (4). If the plaintiff after issue, and before trial, enter into part of the premises, the defendant might plead it as a plea puis darrein continuance, as in other cases (7). Where the name of the plaintiff's lessor was inserted in the body of the plea (as the person complaining) instead of that of the nominal plaintiff, judgment signed against the casual ejector, under the idea that the plea was null and void, was set aside with costs, as irregular (m). The defendant may obtain time to plead, as in other cases (n). CHAP. I. SECT. 1. Rule, when Let the plaintiff's attorney or agent, when the plea and consent Consent rule have been delivered, separate the plea from the rule, and sign and how the latter, and take it to one of the masters, who will thereupon drawn up. draw up the rule(o). When you have got the rule from the master, make up the issue, as directed post, 756(p); annex a copy of the rule to it, and deliver it to the defendant's attorney or agent. up the Con If the plaintiff delay drawing up the rule or replying, the Nonpros for defendant may rule him to reply; and if he do not reply not drawing within the time limited by the rule, which is four days, the sent Rule. defendant may sign judgment of nompros (9). The defendant, however, in such a case, where the lessor of the plaintiff has never entered into the consent rule, will not be entitled to costs (7), the plaintiff being a mere nominal adversary. But he will be entitled to costs on a nonpros, for not replying when the lessor of the plaintiff has joined in the consent rule. Consent Rule. By R. M., 1820, Q. B.(r), R. H., 1 & 2 G. 4, C. P. (8), Form of the R. E., 2 G. 4, Exch. (t), the defendant shall specify in the consent rule for what premises he intends to defend, and shall therein consent to confess upon the trial, not only lease, entry, and ouster, but that he (if he defend as tenant, or if he defend as landlord, then that his tenant) was at the time of the service of the declaration in the possession of such premises; and that if upon the trial the defendant shall not confess such possession, as well as lease, entry, and ouster, whereby the plaintiff shall not be able further to prosecute his suit against the defendant, then no costs shall be allowed for not further prosecuting the same, but the defendant shall pay costs to the plaintiff; in such case to be taxed. Notwithstanding the first part of this rule, it appears to be the inveterate practice to state the premises for which the tenant (or landlord) means to defend with the same obscure generality as in the declaration (u). The consent rule need not set out the christian and surname of the lessor of the plaintiff (v). It must, however, be correctly intitled in the action; and where four ejectments were brought on the demise of the same lessor, to recover thirteen houses, each ejectment being for a portion of the thirteen, and each declaration was for thirty messuages, (k) Doe Byne v. Brewer, 4 M. & Sel. Bl. 763: Doe Vernon v. Roe, 7 Ad. & El. 300; 2 Chit. Rep. 323, S. C (D) 2 Sel. 192: ante, Vol. I. 300. (m) 2 Sel. 188. (n) See Vol. I. p. 160. (o) See the form, Chit. Forms, 369. (See Chit. Forms, 378, 379. (q) Goodright Ward v. Badtitle, 2 W. 14; 2 Nev. & P. 237, S. C. (r) 2 Chit. Rep. 375, 379. (8) 5 Moore, 310, (t) 9 Price, 299 (u) 4 Nev. & M. 45, n. (a): see Doe v. Hughes, 4 Dowl. 412. (c) Doe Spencer v. Reid, 3 Moore, 96. BOOK III. Appearance by Landlord, &c. and the landlord entered into a consent rule, treating the four actions as one, but brought on several demises, and for a hundred and twenty messuages, it was held that the consent rule was a nullity, and that a writ of error coram nobis, describing the cause in the same manner, was no stay of execution (x). Where the ejectment has been brought by one tenant in common against another (y), or by one coparcener or joint tenant against another (z), the court or a judge, upon application, will let in the tenant, &c., to defend, upon his confessing lease and entry only, so as to put the lessor of the plaintiff to prove at the trial an actual ouster; provided the tenant do not dispute the plaintiff's title as joint tenant, &c.(a). If the tenant defend only for part, the plaintiff may, of course, sign judgment against the casual ejector for the residue. Appearance and Plea, &c., by Landlord, &c.] We have and Plea, &c., already seen, (ante, 749), that, although the tenant in possession is not bound to appear and defend the action, yet he is obliged, under a penalty, to give his landlord notice, when a declaration in ejectment has been served on him. And by 11 G. 2, c. 19, s. 13, the court may allow the landlord to make himself defendant by joining with the tenant, if the tenant appear; but if the tenant neglect or refuse to appear, judgment shall be signed against the casual ejector for want of such appearance; yet, if the landlord shall desire to appear by himself, and consent to enter into the like rule the tenant must have entered into had he appeared, the court shall permit him to do so; and shall order a stay of execution upon the judgment against the casual ejector, until they shall make further order therein. A liberal construction has been given to this statute; and the court have let in the heir of the landlord, although he had never been in possession (b), a remainder-man under the same title with the original landlord (c), a devisee in trust (d), and a mortgagee (e), severally, to defend the action. And where a lord, claiming by escheat, applied to be admitted a defendant in an action brought by one claiming as heir, the court directed the lord to bring an ejectment, and the heir to be admitted to defend; and said, that if the lord refused, they would discharge his rule to be admitted; or, if the heir refused, they would allow the lord to defend (f). But a mortgagee will not be permitted to come in, and defend as landlord, unless he be interested in the result of the suit, and be not put forward merely to further the purposes of the tenant (g). Where the tenant came into possession under an agreement with the lessor of plaintiff for a term of years, but afterwards disclaimed the tenancy, the court held that a stranger, claiming a title, should not be (r) Doe Faithful v. Roe, 7 Dowl. 718. (z) Doe Ginger v. Roe, 2 Taunt. 397: (a) Anon., 7 Mod. 39. (b) Lovelock v Doncaster, 4 T. R. 122: and see 3 T. R. 783, S. C. (c) Lovelock v. Doncaster, 3 T. R. 783. (d) 4 Id. 122: see Roe Leek v. Doe, Barnes, 193. (e) Doe Tilyard v. Cooper, 8 T. R. 645: Doe Tubb v. Roe, 4 Taunt. 887. (f) Fairclaim v. Shamtitle, 3 Burr, 1290. (g) Doe Pearson v. Roe, 6 Bing. 613; 4 Moo. & P. 437, S. C. SECT. 1. admitted to defend; or that, if he happened to be admitted, CHAP. I. he should not be allowed to impeach the title of the lessor of the plaintiff; or to set up any other defence than that of which the tenant might have availed himself had he appeared (h). And where, upon an ejectment against the tenant in possession, who came into possession as tenant of the lessor of the plaintiff, a third person, having an adverse title, entered into a consent rule to defend as landlord, the court discharged such rule, with costs (i). The court have, in some instances, even after judgment against the casual ejector, let the landlord in to defend the action (k). Tenants are Where a party is landlord of the whole, and tenant of part where the of the premises, and the tenants are paupers, if he alone be Paupers. the real party defending, he should appear, and defend as landlord for the premises in the possession of his tenants and as tenant for the residue; or, in default thereof, a rule or order may be obtained for setting aside the appearances and pleas of the tenants, and judgment may be signed against the casual ejector(): the Costs. lord. Motion A party residing abroad may, upon being admitted to de- Security for fend as landlord, be required to give security for costs (m). The motion for the landlord to be admitted to defend, The for either with the tenant, or by himself, is a motion of course, leave to deand requires only counsel's signature. Get the motion paper fend as Landsigned by counsel, take it to one of the masters, and draw up the rule(n); and annex a copy of it to the consent rule and plea, before you deliver them to the plaintiff's attorney or agent. You then proceed as in ordinary cases, where the tenant appears alone (o). If the landlord appear by himself, the rule gives liberty to the plaintiff to sign judgment against the casual ejector, but execution thereon to be stayed until further order (p). The plaintiff, thereupon, immediately signs judgment against the casual ejector; and if the landlord does not appear at the trial, the plaintiff, upon producing the postea and office copies of the rules, must move for leave to sue out execution, and the court will accordingly grant a rule nisi (q). But if the landlord does appear, and the cause be tried, and a verdict and judgment be obtained against him, execution may be issued against him without any further order of the court(r). Where the landlord was admitted to defend alone, and died Effect of before the termination of the action, having devised all his ing the Suit. estates to B., and the Statute of Limitations prevented the lessor of the plaintiff from bringing a fresh ejectment, the court gave him leave to sign judgment against the casual ejector h) Doe Knight v. Smythe, 4 M. & Sel. 347. And, according to Doe v. Creed, (5 Bing. 327), the landlord cannot avail himself of every defence that the tenant could have done had he defended; for it was there considered, that, where a party defends as landlord, and the occupiers have suffered a judgment by default, he cannot object that the occupiers have not received notice to quit from the lessors of the plaintiff. (And see Doe v. Street, 4 Nev. & M. 42: Doe v. Horn, 3 M. & W. 340). (i) Doe Horton v. Rhys, 2 Y. & J. 88, (k) See ante, 747. (i) Thrustuut v. Shenton, 10 B. & C. 111; 5 Man. & R. 543: post, 762, 763. (n) See the form, Chit. Forms, 370. (p) See the form of the rule, Chit. (y) See the form of the rule, Chit. Forms, 385. (r) See Doe Lucy v. Bennett, 4 B. & C. 897; 7 D. & R. 261, S. C.: Doe Roberts v. Gibbs, 1 Chit. Rep. 47: Doe Simons v. Masters, Id. 233: post, 766. Death, pend BOOK III. and issue execution thereon, unless B. would appear and defend the action as landlord(s). PART I. Cognovit. Replication, &c. Discontinu ance. 7. Incidental Proceedings. Cognovit (t).] The defendant, after entering into the consent rule, may, if he wish, withdraw his plea and confess the action (u). The plaintiff, in such a case, after a relictú verificatione entered, may sign judgment in pursuance of the cognovit, as directed ante, 680(x). This is a final judgment, and has the same effect as a judgment upon verdict. Where the landlord defended the action at his own expense, but in the name of his tenant, the court, upon application, set aside a judgment entered up on a cognovit given by the tenant, and let in the landlord to defend the action in his own name (y). Replication, &c.] The plaintiff will reply as in other cases. If he do not, and the defendant wish to compel him to do so, he should pursue the directions pointed out ante, 751. A discontinuance is allowed in an ejectment. The court will not, however, give the plaintiff leave to discontinue, after a special verdict has been had, in order to adduce fresh proof in contradiction to the verdict (a). 7. Incidental Proceedings. Particulars of Premises, &c.] The defendant, if there be any reasonable doubt as to the lands, &c., for which the ejectment is brought, may take out a summons before a judge, and obtain an order, calling upon the plaintiff to give Particulars of him a bill of particulars (b). The court or a judge may also, under circumstances, order the defendant to give a particular of the premises for which he defends. Premises, &c. Of Breaches Also, where the ejectment is brought for a forfeiture, the of Covenant. court or a judge, upon application, will order the lessor of the plaintiff to give the defendant a particular of the covenants and breaches, &c., on which he means to insist that the defendant has forfeited his term, and that he shall not be allowed to give evidence at the trial of anything not contained in those particulars (c). Of Lessor's Security for Where the lessor of the plaintiff is unknown to the defendant, the latter may call for a particular of his residence or place of abode from the opposite attorney, and if he refuse to give it, or give in a fictitious account of a person who cannot be found, the court or a judge will stay proceedings until security be given for costs (d). Security for Costs (e) and staying Proceedings.] The defendant staying Pro- may move to stay proceedings until a guardian shall be ap Costs, and ceedings. (s) Doe Grubb v. Grubb, 5 B. & C. 457. (u) See the form of cognovit, Chit. (c) See the form of præcipe for appearance, Chit. Forms, 371; and of the entry on roll, Id 372. (1) Doe Locke v. Franklin, 7 Taunt. 9; 1 Chit. 390, n., S. C.: see Payne v. Rogers, 1 Doug. 407 2 H. Bl. 342, S. C.: Doe v. Dyer, 3 Dowl. 66. (a) Doe Gray v. Gray, 2 W. Bl. 815. (b) Doe Saunders v. Newcastle, Duke of, 7 T. R. 332, See form of order and particulars, Chit. Forms, 374, 375. (c) Doe Birch v. Philips, 6 T. R. 597: Tenny v. Moody, 3 Bing. 3; 10 Moore, 252, S. C.: Sowter v. Hitchcock, 5 Dowl. 724. See form of particulars, Chit. Forms, 375. (d) Tidd, 476: and see ante, Vol. I. 52. (e) As to the recognisance for costs in ejectments under 1 G. 4, c. 87, see post, 778. pointed for an infant lessor, to answer costs (f); or, where the lessor of plaintiff is abroad or dead, or is unknown, until security be given for costs (f). CHAP. I. SECT. 1. Action. So the court or a judge will, in general, stay proceedings in In second a second action, until the costs in the first shall be paid (g). And this although the former action was discontinued before consent rule or plea (h). Where the defendant moved to stay proceedings in an eject- Not for Cesment, upon the ground that the title of the lessor of the ser of Title. plaintiff had determined since the commencement of the action, the court refused the rule, saying, that the plaintiff had a right to proceed for the recovery of his damages and costs (i). repair. In ejectment on a clause of re-entry in a lease for breach For Nonof covenant to repair, the court has no power to stay proceedings even on payment of costs, though it appears that the necessary repairs were done before the commencement of the action (j). ment of Rent. In ejectment for non-payment of rent, if the tenant or his In Fjectment assignee, or mortgagee (k), shall at any time before trial, but for Non-pay. not after(), pay or tender to the landlord, his executors, or administrators, or to the attorney in the cause, or pay into court, all rent and arrears, together with the costs, then all further proceedings shall cease and be discontinued (m). Where the landlord had obtained possession under an habere, the court refused to compel him on motion to pay over to the tenant the value of the crops deducting the rent (n). gagor. Also in ejectment by a mortgagee, (or in an action on a By Mortgagee bond, or a bond for payment of the money secured by the mort- against Mortgage, or performance of the covenant therein contained), where no suit in equity for foreclosure or redemption is depending, if the person having a right to redeem (provided that such party be a defendant in the action) (o) shall, at any time pending the action (p), pay to the mortgagee, or, in case of his refusal, pay into court, the principal and interest due on the mortgage, with such costs as have been expended in any suit at law or in equity on such mortgage, (such money for principal, interest, and costs to be ascertained by the court where such action is pending, or by its officer), it shall be deemed and taken to be in full satisfaction of the mortgage, and the court shall discharge the mortgagor of and from the same accordingly, and order a re-conveyance, &c. (q). This, however, does not Post, Book IV. Part I. Ch. 11. Where the infant lessor was a pauper, the court discharged a rule calling on him to End security, upon the terms that the infant's father should be substituted for the nominal plaintiff. (Doe Roberts v. Roberts, 6 Dowl. 556). (g) Post, Book IV. Part I. Ch. 10: Doe Thomas v. Shadwell, 7 Dowl. 327: Doe Selby v. Alston, 1 T. R. 491: Keene d. Angel v. Angel. 6 Id. 740: and see Doe Rees v. Thomas, 4 D. & R. 145: Doe Williams v. Winch, 3 B. & Ald. 602: Harr. L. & T. 871. th) Doe Langdon v. Langdon, 5 B. & Ad. 864: 2 Nev, & M. 848. (i) Thrustout v. Grey, 2 Str. 1056: see Spicer v. Dodd, 1 Dowl. 306; 2 C. & J. 16, S. C. Doe Mayhew v. Ay, Q. B., F. 1839; 3 Jurist, 459. (k) Doe Whitfield v. Roe, 3 Taunt. 402. (m) 4 G. 2, c. 28, s. 4: see Doe v. Mas- (n) Doe v. Witherwick, 10 Moore, 267: 3 Bing. 11. S. C. (0) Doe Hurst v. Clifton, 6 Nev. & M 857; (p) Ses Doe Tubb v. Roe, 4 Taunt. 887. |