ment 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 Middlesex.

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 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,

h Impey's Pr. B. R.

i In C. B. a warrant of attorney must accompany the other papers.

(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.

(26) The practice is to call the defendant; 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 endorsed on the

and ouster, whereby plaintiff shall not be able to prosecute his suit, defendant shall pay to plaintiff the costs of the non-pros, 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 consent rule of C. B., or the general rule in B. R., it was essentially necessary to prove, that the defendant was in posses sion 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 plaintiff'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 be

k Goodright d. Balch v. Rich, 7 T. R. . 327.

1 R. T. 15 Car. 2. B. R.

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 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 endorsed on the postea, which as to them entitles the plaintiff to judgment against the casual ejector for such lands as were in their possession. Lord Raym. 729.

tween 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 ejectinents are brought inconsistent with landlord's title.

This wise provision of the statute was intended to pre vent 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 the 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".

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. Mortgagee, 8 T. R. 645. N. It does not appear by the report, whether the mortgagee in this case had ever received rent.

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. N. 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

m Landlord might have defended with tenant before this statute, Salk. 257. 7 Mod. 70. 3 Burr. 1301. But the Ed provision in this section is new. n See Jones v. Edwards, Str. 1241.

o Arg. per Eyre Serj, and said by the

Reporter to be the constant practice.
Exp. Beauchamp, Barnes, 4to. edit..

177.

cases but by the defendant in the ejectment, who is a real éjector.

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

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 re-entry, serve a declaration in ejectment; or "in case the same cannot be legally served, or no tenant be "in actual possession, affix the same upon the door of any "demised messuage; or in case such ejectment shall not "be for the recovery of any messuage, then upon some no"torious place of the lands, &c. comprised in the declara"tion in ejectment, and such affixing shall be deemed le

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gal service; and in case of judgment against the casual "ejector, or nonsuit for not confessing lease, entry, and ouster, it shall appear by affidavit, or be proved on the "trial, in case the defendant appears, that half a year's rent was due before the declaration served, and that no sufficient distress was to be found on the premises, countervailing the arrears then due, and that the lessor had power "to re-enter; then, and in every such case, the lessor in ejectment shall recover judgment and execution, in the same manner as if the rent in arrear had been legally de"manded, and re-entry made; provided?, that if the tenant, "at any time before the trial in such ejectment, shall pay or tender to the landlord or his attorney, or pay into

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P S. 4.

"court, the rent arrear and costs, all further proceedings on "the ejectment shall be discontinued" (27).

It has been supposed that the preceding statute only applied to cases of ejectment brought after half a year's rent due, where no sufficient distress was to be found upon the premises. But in a late case (Roe v. Davis, 7 East, 363.) it was holden, that the statute was more general in its operation.

The application to the court, on the part of the tenant, to stay proceedings, must, by the very terms of the act, be made before trial.

In ejectment by a landlord', the tenant moved to stay proceedings, upon payment of rent arrear and costs. On a rule to shew cause, it was insisted, for the plaintiff, that the case was not within the preceding statute; because it was not an ejectment founded singly on the act, but it was brought likewise on a clause of re-entry in the lease for not repairing, and the lease was produced in court. However, the rule was made absolute, with liberty for the plaintiff to proceed upon any other title.

Where an ejectment is brought on the preceding statute for the forfeiture of a lease, acceptance of rent afterwards, by the landlord, has been holden a waver of the forfeiture; for it is a penalty, and by accepting the rent, the party waves the penalty.

Landlord having a right of re-entry for non-payment of rent brought an ejectment and proved a demand of half a year's rent after the day on which it was due, and a refusal on the part of the defendant to pay it, before the re-entry. It appeared that there was a sufficient distress on the premises during the whole time. It was holden', that the lessor of the plaintiff could not recover either at common law, or under the preceding statute; not by the former, because the rent was not demanded on the day when it became due; Co. Lit. 201. 7 Rep. 28.; nor by the latter, because there was a sufficient distress on the premises.

Roe v. Davis, 7 East, 363.

r Pured. Withers v. Sturdy, H. 1752. Bull. N. P. 97.

s Per Aston J. in Doe v. Batten, Cowp. 247.

t Doe d. Forster v. Wandlass, 7 T. R. 117.

(27) Before this statute, courts of law and equity exercised a discretionary power of staying the lessor from proceeding at law, in cases of forfeiture for non-payment of rent, by compelling him to take the money due to him. See the opinion of Lee C. J. in Archer v. Snapp, Andr. 341. 2 Salk. 597.8 Mod. 345. 10 Mod. 383. 2 Vern. 103. 1 Wils. 75. 2 Str. 900.