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CHAPTER IX.

OF THE APPEARNCE-PLEA-AND ISSUE.

In the preceding chapter, the suit has been conducted to its termination, when no appearance is entered in pursuance of the notice subscribed to the declaration; we must now consider, who may appear and defend the action, and in what manner such appearance should be made.

Notwithstanding the power possessed by the courts of framing rules for the improvement of this remedy, the interference of the legislature has, at times, been called for, and it has been most beneficially exerted in regulating the appearances to the action. The tenant in possession, being the person prima facie interested, is, of course, the party on whom the declaration is always served; although it frequently happens in practice, that the lands belong to some third person out of possession, to whom such service can afford no information of the proceedings against him, and who, by the common law, has no remedy against his tenant, if he omit to give him notice of them. By the rules and practice of the courts, also, (for it would scarcely be correct to say by the common law,) the landlord, it seems, was not permitted to defend, even

when he did receive notice, unless the tenant consented to be[*227] come a co-defendant with *him ;(m) and no means existed by

which the tenant could be compelled to appear, and be made such co-defendant.(n). This system occasioned great inconvenience to landlords. The tenants, from negligence or fraud, frequently omitted to appear themselves, or to give to the landlords the necessary notice: and although judgments against the casual ejector have been set aside, upon

(m) Lill. Pr. Reg. 674.

(n) Goodright v. Hart. Stran. 830.

affidavits of circumstances of this nature, the remedy was still very incomplete.(o)

To remedy these imperfections, by the statute 11 Geo. II. c. 19. s. 13., it is enacted, "That it shall and may be lawful for the court in which an ejectment is brought, to suffer the landlord or landlords to make him, "her, or themselves defendant or defendants, by joining with the tenant "or tenants, to whom such declaration in ejectment shall be delivered, "in case he or they shall appear; but in case such tenant or tenants "shall refuse, or neglect to appear, judgment shall be signed against the "casual ejector for want of such appearance; but if the landlord or land"lords, of any part of the lands, tenements, or hereditaments, for which "such ejectment was brought, shall desire to appear by himself or them66 selves, 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, when such ejectment shall be brought, "shall and may permit such landlord or landlords, so to do, and order a "stay of execution, upon such judgment against the casual ejector, un"til they shall make further order therein."[1]

By the 12th section of the same statute it is also enacted, *That every tenant, to whom any declaration in ejectment [ *228 ] "shall be delivered, shall forthwith give notice thereof to his “landlord, bailiff, or receiver, under the penalty of forfeiting the value "of three years improved, or rack-rent, [1] of the premises so demised

(0) Anon 12 Mod. 211.

[1] The Revised Statutes" of New York, Part 3, Chap. 5, Tit. 7, 17, (Vol. 2, pp. 341 & 342,) contain the following provision:

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§ 17. No imparlance, voucher, aid-prayer or receipt, shall be allow. "ed; but whenever any action shall be brought against any tenant, to recover the land held by him, or the possession of such land, the landlord "of such tenant, and any person having any privity of estate or interest "with such tenant or with such landlord, in the premises in question, or in any part thereof, may be made defendant with such tenant in case he "shall appear; or may, at his election, appear without such tenant. And "in the latter case, the court may order a stay of execution upon any judg"ment against the tenant in possession, until the further order of the court."

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[1] 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.

The tenant fraudulently concealed a declaration in Ejectment delivered to him, and suffered judgment to go by default; the declaration in Eject

66 or holden, in the possession of such tenant, to the person of whom he "holds, [1] 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."

With respect to this latter section, it may be proper at once to observe, that it has been interpreted to extend only to those cases in which the ejectments are 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.(p)

The first enactment in the thirteenth section of this statute, namely, that landlords may be made defendants by joining with the tenants in possession, is decidedly only a legislative sanction of the previous uniform practice of the courts; and it is also said, by Wilmot, J., in the case of Fairclaim, d. Fowler, v. Shamtitle, (q) that landlords were permitted, before this statute, to defend ejectments without joining the tenants in possession. There is, indeed, but one case extant in which the (p) Buckley v. Buckley, 1 T. R. 647.

(q) Burr. 1301.

ment 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 by the tenant, and also of those mines in which he had only liberty to dig: 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 statute of 11 G. 2. c. 19. the landlord might recover the treble rent in respect not only of the demis. ed premises, but of the mines in which the tenant had only a liberty to dig. The improved, or rack rent, mentioned in the 11 G. 2. c. 19. s. 12. 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. Crocker vs. Fothergill, 2 Barnew. & Ald. Rep. 652.

[1] The "Revised Statutes" of New-York, Part 2, Chap. 1, Tit. 4, § 27, (Vol. 1, p 748,) contain the following similar enactment:

"27. Every tenant to whom a declaration in ejectment, or any other process, proceeding or notice of any proceeding, to recover the land oc"cupied by him, or the possession thereof, shall be served, shall forthwith 66 give notice thereof to his landlord, under the penalty of forfeiting the va "lue of three years rent of the premises so occupied by him, which may "be sued for and recovered by the landlord or person of whom such ten"ant holds."

contrary doctrine is maintained ;(r) and the loose notes to be found of cases previous to that decision, certainly favour Mr. J. Wilmot's opinion.(s) It is, therefore, probable, particularly since the *case above alluded to happened but a few years before the [ *229 ] statute was passed, that the practice was not clearly settled until the time of that decision, and that the statute was enacted in consequence of the inconvenience resulting therefrom.(t)

By the words of the statute, the courts can admit landlords only to defend, instead of tenants in possession; and difficulties have frequently arisen, as to the meaning of the word landlord in the act, and as to what interest in the disputed premises, will be sufficient to entitle a person claiming title to appear and defend the action.[1]

(r) Goodright v. Hart, Stran. 830.

(t) Fairclaim, d. Fowler, v. Shamtitle,

(s) Lamb v. Archer, Comb. 208. Anon. Burr. 1290. 1298. 12 Mod. 211.

[1] In Ejectment, the defendant's name will not be struck out, in order to substitute the landlord's, without the plaintiff's consent, but the landlord may be made a co-defendant. Emlen vs. Hoops, 3 Serg. & R. Rep.

130.

A motion to admit a landlord to defend in Ejectment, may be grounded on the affidavit of his agent shewing the relation of landlord and tenant between him and the tenant in possession. Jackson ex dem. Sager & Al. vs. Stiles, 1 Cowen's Rep. 134.

Where a party defends an Ejectment as landlord, and the occupiers of the premises have suffered judgment by default, he cannot object that the occupiers have not received notice to quit from the lessor of the plaintiff. Doe ex dem. Davies vs. Creed, Doe dem. Davies & Cheese vs. Creed, 5 Bingk. Rep. 327.

Where the lessor of the plaintiff proceeded as for a vacant possession, and obtained a regular judgment by default; it was set aside, and the person claiming to be owner of the land, on the affidavit of merits, &c. was admitted as defendant, on payment of costs, and stipulating to admit he was in possession at the commencement of the suit. Wood ex dem. Elmendorf vs. Wood, 9 Johns. Rep. 257.

A party will not be admitted to defend on an affidavit that he claims title to the premises, and has a real and substantial defence to make. Jacksun ex dem Winter vs. M'Evoy, 1 Caines' Rep. 151.

A. leased a lot of land to B., and the lease contained a power of reentry for the non-payment of the rent, &c.; B. leased the same premises to C., by parol. A. brought an action of Ejectment for the recovery of the premises, under the 23d section of the act (Sess. 11. Chap. 36.) for non-payment of the rent, &c., and a judgment by default was entered, on the 27th of September, 1811, against the casual ejector, and final judg

In the first reported case upon the construction of this section, it was holden, that it was not every person claiming title, who could be admitted to defend as landlord, but only he, who had been in some degree in possession, as receiving rent, &c.; and upon this principle, the court would not allow a devisee, claiming under one will of the testator, to defend as landlord in an ejectment, brought by a devisee claiming under another will of the same testator. (u) But this doctrine was afterwards reprobated by Lord Mansfield, in a case where the principles of the section were fully considered, and the decisions, anterior to the act, investigated and explained.

"There are, (says Lord Mansfield,) two matters to be considered: First, whether the term 'landlord' ought not, as to this purpose, to extend

(u) Roe, d Leak, v. Doe, Barn. 193.

ment entered on 23d of December, 1811, and a writ of possession thereon executed before January term, 1812. B. was not informed of the proceedings in the Ejectment suit, until the 27th of May, 1812, and in August following, applied to set aside the default and subsequent proceedings, and to be let in to defend as landlord; and it appearing, that B. had been discharged under the insolvent act, in September, 1811, it was Held, that he had no further right, as landlord, to come in and defend ; and that, though he had afterwards, on the 27th of May, 1811, purchased the premises at the sheriff's sale under an execution on a judgment against him, he could not, in the new character of purchaser, be let in, so long after a regular execution of the judgment in ejectment. Jackson ex dem. Vanderwerker vs. Stiles, 10 Johns. Rep. 67.

If a person be admitted to defend, on payment of costs, and after entering into the consent rule, keep out of the way, to avoid being served with a copy of the Ca. Sa. against the casual ejector, a rule will be granted to show cause why an attachment should not issue against him; and that service of the rule at the defendant's house shall be sufficient. Jackson ex dem. Jackway vs. Stiles, 2 Caines' Rep. 368.

A mortgagee in possession may be let in to defend in an action of Ejectment. Jackson ex dem. vs. Stiles, 11 Johns. Rep. 407.

A plaintiff in an action of Ejectment brought under the 88th section of the judiciary act, [Vermont,] is not obliged to join a landlord with the tcnant in possession, who holds by parol lease or by written lease, unrecorded, unless it can be proved that the plaintiff had knowledge of the exist ence of such lease. Wallace vs. Farnsworth, 2 Tyler's Rep. 294.

The landlord will not be permitted to defend alone in Ejectment, until the tenant first neglect or refuse to appear, which should be stated in the affidavit for the motion. Jackson ex dem. Thompson vs. Stiles, 1 Cowen's Rep. 134.

Where the landlord is admitted to defend alone, judgment may be sign. ed against the casual ejector. Ibid.