66

for want of appearance) and writ of possession executed, on an affidavit by the attorney, for the landlord and tenant, that he had received instructions for entering an appearance, but had neglected it, owing to matters personally affecting himself, which had prevented his attending to it. And an averment in the affidavit, that the deponent believed the parties to have a good defence to the action, was held to be sufficient without adding on the merits." The court will, in some cases, in the exercise of their discretion, set aside a judgment against the casual ejector on terms, where the tenant has neglected to give notice to the landlord. But where judgment and execution in ejectment was regularly obtained without collusion with the tenants in possession, the court refused to set it aside at the instance of a party who stated that he was landlord of the premises, and had not received any notice of the declaration in ejectment 4. Yet in a more recent case, after a writ of possession executed, and an action for mesne profits commenced, the court set aside the judgment and execution on payment of all the costs incurred, at the instance of the landlord, who by the mistake of his wife had not had the copies of the declaration, which had been served on his tenants, delivered to him o. The regular mode of setting aside such judgments is by rule of court, for the party having obtained the judgment to give up the possession; but if the circumstances of the case require it, the courts will order a writ of restitution to be issued f.

a Doe d. Shaw v. Roe, 13 Price, 260.

bid.

Doe d. Troughton v. Roe, 4 Burr. 1996. Doe d. Grocers' Co. v.

Roe, 5 Taunt. 205. Doe d. Ingram v. Roe, 11 Price, 507. Doe d. Meyrick v. Roe, 2 C. & J. 682.

d Doe d. Martin v. Roe, 1 Hodges, 223. 1 Scott, 181. And see Goodtitle v. Badtitle, 4 Taunt. 820.

Doe d. Butler v. Roe, 2 H. & W. 130.

f Adams, 252. Davies d. Povey v. Doe, 2 Bl. 892.

1.-Who may appear.] HAVING considered the course to be pursued by the plaintiff when no appearance is entered, pursuant to the notice subscribed to the declaration, we shall now treat of the parties who may appear, and of the mode of proceeding when the action is defended.

We have seen that the tenant in possession is the party on whom the declaration must be served; and as it frequently happens that such tenant is an under-tenant to some other person, to whom such service can afford no information of the proceedings, and even if the landlord had notice, according to the ancient practice he was not permitted to defend; whereby great inconvenience was occasioned to landlords when the tenants either through negligence or fraud omitted to appear themselves; to remedy which it was enacted by 2 Geo. II. c. 19. s. 12, "that every tenant on whom a declaration in ejectment shall be served, shall give notice thereof to his landlord, under the penalty of forfeiting the value of three years' improved or rack rent of the premises to the landlord; to be recovered by action of debt." a

And sec. 13. enacts, "that it may be lawful for the court in which an ejectment is brought, to suffer the landlord to make himself defendant, by joining with the tenant, in case he shall appear; but in case such tenant shall refuse or neglect to appear, judgment shall be signed against the casual ejector for

A tenant

on being

served with

a declara

tion must

give notice thereof to

his landlord.

Appearance by the

landlord.

Who may defend as Jandlord.

want of such appearance; but if the landlord 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 had appeared, ought to have done, then the court shall permit the landlord to do so, and order a stay of execution upon such judgment, against the casual ejector, until they shall make further order therein." a In the construction of this section, the word landlord is extended to all persons claiming title consistent with the possession of the occupier; thus a devisee in trust, was permitted to defend b; so an heir was, where the ancestor under whom he claimed had obtained the same rule just before his death c. So was a mortgagee along with the mortgagor d But if the mortgagee is not interested in the result of the suit, the court will not allow him to defend o.

Where a landlord defrayed the costs 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, and permitted the landlord to defend f.

A third person cannot defend as landlord, where it appears that the tenant in possession, came in as tenant to the lessor of plaintiff, and paid rent to him, under an agreement which has expired 8. If a party should be admitted to defend as landlord, whose title is inconsistent with the possession of the tenant, the lessor of the plaintiff may apply to the court, or to a judge at chambers, and have the rule discharged with costs b. 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 the consent rule with costs a

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 ejector by the opposite party; and if it be delayed until after that time, the court will grant the motion, or not, at their discretion b.

should be

The appearance should, in all cases, be entered of the term When an mentioned in the notice (unless it be a country cause). Where appearance the notice was to appear in Hilary Term, and the tenant entered entered. an appearance in Michaelmas Term, and did nothing farther, and the plaintiff's lessor, finding no appearance of Hilary Term, signed judgment against the casual ejector, the court held the judgment regular, but afterwards set it aside upon payment of costs, to try the merits c.

In all country ejectments, in the King's Bench or Common Pleas, which shall be served before the first day of any Michaelmas or Easter term, the time for the appearance of the tenant in possession, must be within four days after the end of such Michaelmas or Easter term, and not be postponed till the fourth day after the end of Hilary or Trinity terms respectively following d. But in the Exchequer, where country ejectments are moved for in terms not issuable, the defendant is entitled to four days' time after the next issuable term, to appear e.

2.-The consent rule.] It has been shewn that the tenant may appear and defend the action alone, or jointly with his landlord; or that, if the tenant refuse, the landlord may appear alone. The appearance in all these cases is effected in the same manner, by application to the court, to be made by defendant instead of the casual ejector, upon entering into the

How an appearance

is to be

made.

Nature of the consent rule.

consent rule. The course to be pursued is as follows:-The party applying for leave to defend, must, through his attorney, procure a blank form of a consent rule, and entitle it in the margin with the names of the plaintiff and casual ejector, inserting also therein the premises as described in the declaration. He must then sign his name to this paper, which is called the agreement for the consent rule, and leave the same at one of the judges' chambers when the proceedings are in the King's Bench, or with the prothonotary when in the Common Pleas, together with a plea of not guilty. Common bail is then entered for the tenant, 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. When the landlord appears either jointly with the tenant, or alone, there must be a motion, with counsel's signature, to admit the landlord, and if the latter appear alone, there must also be an affidavit of the tenant's refusal to appear, annexed to the consent rule a.

The consent rule contains conditions to be observed by the plaintiff as well as by the defendant, and is in substance as follows:-The party appearing undertakes to receive a declaration in ejectment, and plead not guilty. At the trial of the issue to confess lease, entry, ouster, and possession of the premises, in respect of which he defends, and insist upon title only; or if he fails in this respect, so that the plaintiff shall not be able to prosecute his suit, such party shall pay to the plaintiff the costs of the non pros, and suffer judgment to be entered against the casual ejector. The claimant undertakes, that if a verdict shall be given for the defendant, or the plaintiff shall not prosecute his suit for any other cause than the nonconfession of lease, entry, and ouster, he shall pay costs to the defendant. When the landlord appears alone, the undertaking is, that the plaintiff shall be at liberty to sign judgment immediately against the casual ejector, but that execution shall be stayed until the court shall further order".

a

Adams, 265.

b An attachment will lie against

either party for a disobedience of the

consent rule, as of any other rule of court, which affords a summary remedy for their costs.