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term generally, the tenant has the whole of that term to appear in (a).

In the Common Pleas, if the premises be situate in London or Middlesex, and the tenant have notice to appear in the beginning of the term, the plaintiff cannot take any thing by his motion for judgment against the casual ejector for default of appearance, unless such motion be made within one week next after the first day of every Michaelmas and Easter terms, and within four days next after the first day of every Hilary and Trinity terms.—But it has been holden that this rule does not extend to the case of a vacant possession, under the stat. 4 G. 2. (a)

In country causes the tenant was formerly allowed until four days after the next issuable term (that is, Hilary or Trinity) to appear and plead, although the declaration should be delivered before the essoign day of Easter or Michaelmas term; but the practice is now altered, and by recent rules of the Courts of King's Bench and Common Pleas, it is ordered, that in all country ejectments, which hereafter shall be served before the essoign day of any Michaelmas or Easter term, the time for the appearance of the tenant in possession shall be within four days after such Michaelmas or Easter term, and shall not be postponed till the fourth day after the end of Hilary or Trinity terms respectively following (b).

By a rule of the Court of King's Bench, the clerk of the rules is to keep a book, in which are to be entered all the rules which shall be delivered out in ejectments, instead of that formerly kept which contained a list of the ejectments moved. The entry is to specify the number of the entry; the county in which the premises lie; the name of the nominal plaintiff; the first lessor of the plaintiff, (with the words "and others," if more than one,) and also the name of the casual ejector: and unless the rule for judgment be drawn up and taken away from the office of such clerk within two days after the end of the term in which the ejectment shall be moved, no rule is to be drawn up or entered, nor any proceedings had in such ejectment.

Section II. Who may defend the Action of Ejectment, C.

The Tenant.—The tenant in possession must apply to the Court to be made defendant in the room of the casual ejector. This is done on condition that he confesses lease, entry, and ouster.

By the common law, no person is permitted to defend in ejectment, unless he be tenant, and is or hath been in possession, or receipt of the rent; for, besides that it was champerty for any person

(a) Run. Eject. l6j-6. {*) 4 B. * A. J39. % B. & B. 705.

to interpose and cover the possession with his title if the party would make any person defendant with another, who was not concerned in the possession of the tenements, it was a mischief at the common law, because if the plaintiff recover against one of the defendants, the stranger had no remedy for his costs; but this is remedied by 8 & 9 W. 3. c. 10. whereby costs are given to such strangers, unless the Judge certify, immediately on the trial, that the party had probable cause for making him defendant.

Moreover, as the tenant in possession could not be compelled to appear and enter into the common rule to become defendant instead of the casual ejector; so neither could the landlord alone, without joining with the tenant, enter into such rule, and be made sole defendant.

The Landlord.—To remedy this inconvenience, by stat. 11 G. i.e. 19.s. 13. it is enacted, That it may be lawful for the Court, where such ejectment shall be brought, to suffer the landlord to make himself defendant, by joining with the tenant, in case he should appear; but in case such tenant shall neglect or refuse to appear, judgment shall be signed against the casual ejector, for want of such appearance: but if the landlord, &c. of any part of the lands, &c. for which such ejectment was brought, shall desire to appear by himself, and consent to enter into the like rule, that by the course of the Court, the tenant in possession in case he or she had appeared, ought to have done; then the Court, where such ejectment shall be brought, shall and may permit such landlord so to do; and order a stay of execution upon such judgment against the casual ejector, until they shall make further order therein.

The landlord's right to be joined in defending the premises is affirmed by this statute, for he had such right before: and it is optional in him to be made defendant or not, for the Court cannot compel him (a).

The Court, however, has no jurisdiction, it seems, to admit any person to defend instead of the tenant, but the landlord. In the construction, however, of the statute, the word " landlord" is extended to all claiming title consistent with the possession of the occupier, for it need not be the actual landlord, but it is sufficient if he have an interest only in the land. A purchaser, therefore, of a reversion, which appeared to be a pretended title, and where no rent had ever been paid, was held to be admissible as a defendant. So, it should seem, a mortgagee out of possession may now be admitted to defend, on the tenant's refusal. But a devisee {cestui que trust) out of possession is not deemed a landlord within the meaning of the act: for upon a motion to permit certain devisees to defend instead of the tenant)''

{a) UaderhUl v. Durham. Salk. Zj6.

was opposed on the ground that the devisees had never been in possession, and could not, therefore, be considered as landlords under 11 G. 2. c. 19. j. 13.; and Lord Kenyon said, If the person requiring to be made defendant under the act, had stood in the situation of immediate heir to the person last seised, or had been in the relation of remainder-man under the same title as the original landlord, I am of opinion that he might have been permitted to defend as a landlord by virtue of the directions of the statute; but here, the very question in dispute, between the adverse party and himself, is, Whether he is entitled to be landlord or not: we, therefore, are not authorized to extend the provision of the statute to such a case as this (a). As to the case mentioned, it appears to have been done by consent.—A devisee in trust, however, may defend as landlord. So, an heir who had never been in possession. So, the heir at law or remainder-man under the same title (b).

So, if an ejectment be brought by one claiming as heir of a copyhold, and the lord of a manor, who claims by escheat pro defectu haredis, applies to be admitted defendant either with the tenant or alone, the Court will direct the lord to bring this action against the heir, and the heir will be admitted to defend. If the lord refuse, they will discharge his rule to be admitted; if the heir refuse, they will admit the lord to defend (c).

On the landlord being made a defendant under 11 G. 2. c. 19. on non-appearance of the tenant, the Court will stay execution against the casual ejector,

But where the landlord is permitted to defend without the tenant, judgment is always first signed against the casual ejector; the reason of which is that, under it, the plaintiff, if he obtain a verdict, may get possession of the premises sued for, which he could not do by virtue of a judgment against a person out of possession (d).

As to the time when the landlord may be admitted defendant, a case occurred, in which judgment had been regularly obtained against the casual ejector by default:—the landlord of the premises moved to set it aside, because his tenant had not given him any notice of his having been served with the declaration in ejectment. The plaintiff insisted that his judgment was perfectly regular ; and that the tenant's omitting to give his landlord notice of the declaration being delivered was merely a matter between the landlord and his tenant, which could not affect the plaintiff's regular judgment, which had been fairly and duly obtained. The Court, however, were clearly of opinion that the possession ought not to be changed by a judgment in ejectment where there had been no trial or opportunity of trying; for the obtaining

(a) Lovelock d. Norris v. DoncMter. 3 T. | (c) Fairclaim d. Fowler v. Shamtitle, 3 &783- !Burr. 1290.

U) S. C. 4 T. R. Im. i (rf; % Sell. Price. 1B6.

judgment might be owing to the default, or even treachery of the defendant's own tenant. But if the plaintiff had not been guilty of any collusion with the tenant, they thought it reasonable that the tenant, who was the person guilty of the default, should pay the costs: for the.rule of the Court, which requires service upon the tenant in possession, is calculated with a view that the tenant should give notice to his landlord, in order that the ejectment cause might be tried between the proper parties interested in the question (a).

If judgment be signed, it is too late for the landlord to be made defendant. But the landlord may be let in after judgment, when signed in consequence of the tenant's not giving notice (b).

But in no event will the Court endure that a lessee defend alone against his landlord, or those who claim under him, on a supposed defect of title (s).

Where a landlord defrayed the cost of defending an ejectment in the name of an illiterate tenant, who gave a retraxit of the plea, and cognovit of the action, the Court set aside the retraxit and cognovit,w& permitted the lessor to defend as landlord (d).

A third Person.—In all cases, if the person who wishes to defend be neither tenant nor actual landlord, but has some interest to sustain, he must move the Court, on an affidavit of the fact, to be made a defendant, instead of, or with, the casual ejector; and the tenant's consent is not now necessary (e).

Where a third person was admitted to defend as landlord, he was not allowed, upon the trial of the ejectment, to give evidence of his title, it appearing that the tenant in possession came in as tenant to the lessor of the plaintiff, and paid rent to him under an agreement which had expired (_/").

If a material witness for the defendant be also made a defendant, the right way is for him to let judgment go by default; but if he plead, and by that means admit himself to be tenant in possession, tw Court will not afterwards upon motion strike out his name. In such cases, however, if he consent to let a verdict be given against him for as much as he is proved to be in possession of, no reason appears why he should not be a witness for another defendant (g).

In order to protect landlords from the frauds or negligence of tenants who frequently omitted to appear themselves, or to gi« "* landlords the necessary notice, it is enacted by stat. 11 G. 2. c. 19. t, 12. that every tenant to whom any declaration in ejectment shall be delivered, shall forthwith give notice thereof to his landlord,

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bailiff or receiver, under the penalty of forfeiting the value of three years improved, or rack-rent, of the premises so demised, or holden, in the possession of such tenant, to the person of whom he holds, to be recovered by action of debt to be brought in any of his Majesty's Courts of Record at Westminster, or in the counties Palatine of Chester, Lancaster, or Durham respectively, or in the Courts of Grand Sessions in Wales.

Where there was a demise by lease of certain lands, together with the mines under them, with liberty to dig for ore in other mines under the surface of other lands not demised; and the tenant fraudulently concealed a declaration in ejectment delivered to him, and suffered judgment to go by default; and the declaration in ejectment did not mention mines at all, but the sheriff in executing the writ of possession, by the concurrence of the tenant, delivered possession of the premises demised to the tenant, and also of those mines in which he had liberty to dig: it was held that, although the latter could not be recovered under the declaration in ejectment still that the tenant by his own act had estopped himself from taking that objection, and that in an action for the value of three years' improved rent under the stat. Ii G. 2. c. 19. the landlord might recover the treble rent in respect not only of the demised premises, but of the mines in which the tenant had only a liberty to dig (0).

The nth section of stat. 11 G. 2. c. 19. has been interpreted to extend only to those cases in which the ejectment is inconsistent with the landlord's title. Thus a tenant of a mortgagor, who does not give him notice of an ejectment, brought by the mortgagee upon the forfeiture of the mortgage, is not within the penalties of the clause (b). The improved or rack-rent mentioned in this section, is not the rent reserved, but such a rent as the landlord and tenant might fairly agree on at the time of delivering the declaration in ejectment, in case the premises were then to be let (a).

Notwithstanding the remedy provided by this statute, where the tenant had not given notice to his landlord of the ejectment, and there was judgment against the casual ejector, the Court set aside the judgment and ordered the tenant to pay all the costs to the lessor of the plaintiff on the landlord's entering into the usual rule to try the title (c). The landlord also may bring a writ of error, which operates as a supersedeas of the proceedings under the statute, and thereby stay execution (d).

Consolidation Rule.—Where there are several defendants, to whom the plaintiff delivers declarations, who are severally concerned in interest, and the plaintiff moves to join them all in one declaration, yet the Court will not do it, but the plaintiff must deliver several decla

Nut cracker v. Fothergill. iB. and A. 65*. I (e) Doe d.Troughton v. Roe, 4 Burr. 1996, (*) Buckley v. Buckley, i T. R. 647. I M Jones v. Edwards, 3 Stran, l»4'

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