rule,(x) and leave the same at one of the judge's chambers, when the proceedings are in the King's Bench, or with the prothonotary when in the Common Pleas, (where it will also receive the signature of the attorney of the lessor of the plaintiff,) together with a plea of the general issue. Common bail is then entered *for the tenant, [ *238 ] if the proceedings are by bill, or the usual appearance, if by original; and the suit proceeds in his name, instead of that of the casual ejector.(y)

When the landlord and tenant appear jointly, or the landlord appears alone, the same forms are observed, mutatis mutandis, together with the addition of counsel's signature to a motion (which is a motion of course, and must be annexed to the consent rule) to adroit the landlord and tenant, or landlord only, to defend: accompanied also, when the landlord appears alone, with an affidavit of the tenant's refusal to appear.(z) [1]

When the party who wishes to be made defendant is not the tenant, or actual landlord, but has some interest to sustain, the Coart must be moved, on an affidavit of the facts, to permit him to defend with or without the tenant, as the case may require. [2]

(x) Appendix, No. 24.

(y) 2 Sell. Prac. 192.

(z) Hobson, d. Bigland, v. Dobson, Barn. 179. 2 Sell. Prac. 102.-Appendix, No. 29.

[1] In Ejectment the landlord may move to defend at the term when the declaration is returnable; he need not wait till a default is entered against him; if the defendant expressly refuse to appear, it is enough. Jackson ex dem. Rugbee & Al. vs. Stiles, 6 Cowen's Rep. 589.

The affidavit on which to move that the landlord defend in Ejectment, should shew the relation of landlord and tenant. That the tenant claims no interest except as tenant to the landlord, is not sufficient. Jackson ex dem. Brinckerhoff vs. Stiles, 6 Cowen's Rep. 594.

[2] On motion to be received to defend as landlord in Ejectment; it is competent for the plaintiff to show that the landlord had, after the lease, conveyed away all his interest in the premises in question. Jackson ex dem. Howland vs. Stiles, 5 Cowen's Rep. 447.

A. leased a lot of land to B., and the lease contained a power of re-entry for 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. c. 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 judgment entered on the 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 appealed to set aside the default and subsequent proceedings, and to be let

If the tenant refuse to appear, the landlord cannot appear in his name, nor appoint an attorney to do so for him, and an irregular appearance of this sort will be ordered to be withdrawn. (a)

When it happens that the lessor of the plaintiff claims lands in the possession of different persons, and one of the tenants would be a material witness for the others, such tenant should suffer judgment to go by default, as to the part in his possession; because, if he appear, and be made a defendant, he becomes a party to the suit, and [*239] conse-*quently cannot be a witness therein; and it seems, that if he appear and plead, the Court will not afterwards strike out his name upon motion.(b)[1]

When the landlord is admitted to defend without the tenant, judgment must be signed against the casual ejector, according to the conditions of the consent rule. The reason for this practice is, to enable the claimant to obtain possession of the premises, in case the verdict be in his favour; because, as the landlord is not in possession, no writ of possession could issue upon a judgment against him

The motion to admit the landlord to be defendant, instead of the tenant, ought regularly to be made before judgment is signed against the casual ejcctor, by the opposite party;[2] and if it be delayed until after (b) B. N. P. 98.

(a) Roe, d. Cook, v. Doe, Baru. 39. 178.

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, 1812, purchased the premises at sheriff's sale under an execution on a judgment against him, he will 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.

[1] Defendants in Ejectment after they have taken a joint defence, are not permitted at the trial to sever their defence. Carrol & Al. vs. Norwood, Harr. & Johns. Rep 182.

After several persons, who have been jointly tried in Ejectment, have entered into the common rule and pleaded jointly, they cannot avail themselves of the circumstance of their tenants in severalty of distinct parcels of land. Abney & Al. vs. Barnet, 1 Marsh. Rep. (Ky.) 107.

[2] After a judgment by default against the casual ejector, the landlord may be let in to appear and defend. Jackson ex dem. Cantine vs. Stiles, 4 Johns. Rep 493.

Where, in Ejectment, a person obtains a rule to defend as landlord, the

that time, the Court will grant the motion or not, at their discretion. (c) Thus, where a judgment against the casual ejector was signed, and a writ of possession executed thereon, and it appeared, upon motion, that the landlord's delay in his application arose from the tenant's negligence, in not giving him due notice of the service of the declaration, according to the provisions of the statute 11 Geo. II. c. 19. e. 12., the Court ordered the judgment and execution to be set aside, compelled the tenant to pay all the costs, and permitted the landlord to be made defendant on the usual terms; notwithstanding it was strongly argued by the opposite *party, that the judgment was perfectly regular, and [ *240 ] that the tenant's negligence was entirely a matter between him and his landlord, for which the statute had given the landlord ample compensation. (d) But in a recent case, the Court of Common Pleas, after a recovery in an undefended ejectment, without collusion, and after the lessor of the plaintiff had contracted for the sale of part of the premises, and let the purchaser into possession, refused to set aside the judgment, and writ of possession upon an application of this nature, and assigned as their reason, that the concealment of the delivery of the declaration was a matter between the tenant and his landlord, with which the plaintiff's lessor had no concern. e) And, in another case, where the landlord applied to be made defendant, after judgment had been signed, but before execution, and the claimant offered to waive his judgment, if the landlord, who resided in Jamaica, would give security for the costs, to which offer the landlord's counsel would not accede, the Court refused the application, and permitted the plaintiff's lessor to take out execution. (f)

The appearance should, in all cases, be entered of the term mentioned in the notice, unless it be a country cause, and the notice be to appear in a non-issuable term, and then the appearance must be of the next issuable term; and where the notice was to appear in Hilary term, and the tenant entered an appearance in Michaelmas term, and did nothing

(c) Dobbs v. Passer, Stran 975.

(d) Doe, d. Troughton v. Roe, Burr. 1996.

(e) Goodtille v. Badtitle, 4 Taunt. 820. (f) Roe, d. Hyde, v. Doe, Barn. 186.

plaintiff nevertheless may sign judgment against the casual ejector, but may not take out execution without further order: Held, that after verdict and judgment against the landlord, execution may be issued against him without any further order of the court. Doc ex dem. Lucy vs. Bennet, 4 Barnew. & Cress. Rep. 897.

farther, and the plaintiff's lessor, finding no appearance of Hilary term, signed judgment against the casual ejector, the Court held the [ *241] judgment regular, but *afterwards set it aside upon payment of costs, to try the merits. (g)

The party, intending to defend the action, having appeared according to the forms above mentioned, the lessor's duty in consequence thereof, must be our next consideration.

When the time for appearance has expired, the lessor's attorney must search at the proper offices for the agreement before mentioned on the part of the defendant, to enter into the consent rule; and, having signed his name on it, above that of the defendant's attorney, and also (when the proceedings are in the King's Bench) obtained the signature of the judge, at whose chambers the agreement was left, he must take it to the clerk of the rules, or secondary, who will file it, and draw up the consent rule thereupon:(h) which consent rule is, in truth, a copy of the agreement, prefixing only the date of drawing it up, omitting the premises in the margin, and adding "by the Court," instead of the attornies' names, at the end.

The plea of the general issue, we have before observed, is generally left by the defendant with the agreement for the consent rule; and when this is the case, as soon as the consent rule is drawn out, the issue is at once made up, with a copy of the rule annexed, and delivered to the defendant's attorney, with notice of trial as in other actions. [*242 ] *But if the plea be not left with the consent rule, (i) the plaintiff must give a rule to plead, and then judgment may be entered actions without a special motion in

for want of a plea,[1] as in other court for the purpose.(j)

(g) Mason, d. Kendall, v. Hodgson, Barn. 250.

(h) Appendix, No. 25.

(i) Where the plea was entitled with the true name of the cause, but, by mistake in the body of the plea, the name of the lessor was inserted as the person complaining, instead of that of the plaintiff, and the lessor's

attorney, looking upon this plea as null and void, signed judgment against the casual ejector; the judgment was set aside, with costs, as irregular, for the plea was properly entitled, and not a nullity. Goodtitle v. Badtitle, Barn. 191.

(j) Reg. Hil. 1649, and Triu. 18 Car. II. B. R.

[1] After entering into the consent rule in Fjectment, the plaintiff must, before he can enter a default, serve a new or altered declaration. Jackson ex dem. Wood & Al. vs. Wood & Al. 6 Cowen's Rep. 586.

OF THE PLEA, AND ISSUE.[2]

Jackson

The tenant must plead at the time he signs the consent rule. ex dem. Van Alen vs. Visscher, 2 Johns. Cas. 106. SAME CASE, Coleman's. Cas. 115.

The signing the consent rule, delivering a new declaration, putting in Jackson ex dem. common bail, and filing a plea, are all simultaneous acts. SAME CASE, Coleman's Quackenboss vs. Woodward, 2 Johns. Cas. 110. Cas. 120.

Where the defendant's attorney filed a consent rule without a plea, and after having agreed to exchange consent rules with the plaintiff's attorney at home, neglected, when called upon to plead without a rule for that purpose, and the plaintiff's attorney took judgment for default of a plea against the casual ejector: Held, the judgment was regular. Den er dem. Bray & Al. vs. Fen, 3 Halsted's Rep. 303.

[2] The "Revised Statutes," Part 3, Chap. 5. Tit. 1. (Vol. 2, 306,) contain the following sections:

pp. 305,

"§ 17. A defendant in Ejectment, may, at any time before pleading, apply to the court, or to any judge thereof in vacation, to compel the attorney for the plaintiff to produce to such court or officer, his authority for commencing the action in the name of any plaintiff therein.

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18. Such application shall be accompanied by an affidavit of the defendant, that he has not been served with proof in any way, of the authority of the attorney to use the names of the plaintiffs stated in the declaration. "19. Upon such application, the court or officer shall grant an order requiring the production of such authority, and shall stay all proceedings in the action, until the same be produced.

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20. Any written request of such plaintiff or his agent, to commence such action, or any written recognition of the authority of the attorney to commence the same, duly proved by the affidavit of such attorney or other competent witness, shall be sufficient presumptive evidence of such authority.

"21. If it shall appear, that previous to such application by any defendant, he was served with a copy of the affidavit of the plaintiff's attorney, showing his authority to bring such action, such application shall be dismissed, and such defendant shall be liable for the costs of resisting such application; the payment of which may be compelled by attachment as in other cases, which may be issued upon proof of disobedience to the order of the court or officer directing the payment of such costs.

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"§22. The defendant may demur to the declaration as in personal actions; or he shall plead the general issue only, which shall be that the defendant is not guilty of unlawfully withholding the premises claimed by the plaintiff, as alleged in the declaration; and the filing and service of such plea or demurrer, shall be deemed an appearance in the cause. And upon such plea, the defendant may give the same matter in evidence, and the same proceedings shall be had, as upon the plea of not guilty in the present action of Ejectment, except as herein otherwise provided.

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§ 23. Upon such plea, the defendant may give in evidence any matter which if pleaded in the present writ of right or action of dower, would bar the action of the plaintiff."