The consent rule will in all cases prevent a nonsuit for want of proof of lease, entry, and ouster, except in ejectments, to avoid a fine, when there must be an actual entry. Where an ejectment is brought by a joint-tenant, a co-parcener, or tenant in common, against his companion, to support which an actual ouster is necessary, the plaintiff must apply to the court for leave to enter into a special rule, requiring the defendant to confess lease and entry, but not ouster, unless an actual ouster can be proved; and this rule will be always granted ". When the landlord When the landlord is admitted to defend without the tenant, judgment must be signed against the casual ejector, according defends to the conditions of the consent rule. The reason for this alone. 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. Where a landlord defended alone, and died before the trial of the cause, devising his real estate to B., and the lessor was prevented by the statute of limitations from bringing a fresh ejectment, the court gave him leave to sign judgment against the casual ejector in the old suit, and issue execution thereon, unless B. consented to appear and defend as landlord b. 3.-Consolidation of actions.] When there are several tenants in possession, who are served with declarations for different premises, the court will not, on the motion of the plaintiff, allow them to be joined in one action, as each defendant must have a remedy for his costs, which he could not have if they were joined in one declaration, and the plaintiff prevailed only against one of them. But where several ejectments are brought for the same premises, upon the same demise, the court, on motion, or a judge at chambers, will order them to be consolidated d. * Doe d. Gigner v. Roe, 2 Taunt. 397. But see Doe d. Dupleix v. Roe, 1 Anst. 86, where it is said that the court of Exchequer will not grant such a rule. Doe d. Grubb v. Grubb, 5 B. & C. 457. Smith t. Crabb, 2 Stra. 1149. Roe d. Burlton v. Roe, 7 The plea should be left with rule. 4.-Plea and issue.] We have seen that the plea of the general issue, which is not guilty, should be left with the conthe consent sent rule. If it be not, the plaintiff must give a rule to plead and enter judgment for want of a plea, as in other actions, without special motion in court for the purpose. In practice there is rarely any other plea; for as the plaintiff must prove a right of possession in himself, whatever operates as a bar to that right, as a fine with a non-claim, the statute of limitations, &c., will entitle the defendant to a verdict under the general issue b. The courts will, however, permit the defendant to plead specially, if the circumstances of the case require it. Thus the defendant, with the leave of the court, may plead to its jurisdiction, before a rule nisi for judgment against the casual ejector. So ancient demesne may be pleaded, with the permission of the court; but application to plead it must be made within the first four days of term, and it must be founded upon an affidavit that the lands are holden of a manor of ancient demesne, and that the claimant has a freehold interest d. But a plea of release, puis darrien continuance, is bad on general demurrer, because the lessor of the plaintiff cannot release e. When the consent rule has been obtained, the plaintiff is at liberty to make up the issue, which must agree with the declaration in every respect, except in the defendant's name, which is substituted for Richard Roe. If there be a difference between the issue and the declaration, the court will, on motion, set it right. But the court refused to set aside the verdict in ejectment, on the ground that there was a variance between the description of the premises in the nisi prius record (upon which the plaintiff recovered) and the issue; it not being a Adams, 270. b Id. Run. 234. Will. IV., requiring pleading subsequent to the declaration to be de Williams d. Johnson v. Keen, livered between the parties, does not 1 Bl. 197. d Denn d. Root v. Fenn, 8 T. R. 474. Doe d. Rust v. Roe, 2 Burr. 1046. And see Doe d. Morton v. Roe, 10 East, 523. Doe d. Byne r. Brewer, 4 M. & S. 300. The rule of H. T. 4 apply to actions of ejectment, which are left to the old practice. Doe d. Williams v. Williams, 4 Nev. & M. 259. 2 Adol. & Ellis, 381. f Bass v. Bradford, 2 Ld. Raym. 1411. stated how the premises were described in the declaration delivered 3. When the issue is made up, it should be delivered to the Notice of trial. opposite attorney, with notice of trial indorsed, and the cause is carried to trial as in other actions. In ejectment under 11 Geo. IV. & 1 Will. IV. c. 70. s. 36, if the defendant appears, it is no ground for setting aside a verdict for the plaintiff, that the defendant has not received six days' notice of trial, as required by that statute; though, if proper notice were not given, and the plaintiff proceeded, the defendant not appearing, it would be a good ground for moving to set aside the verdict b. HAVING considered the proceedings in ejectment up to the period of going to trial, it may be convenient to notice in this place the cases in which the courts, in the exercise of their discretionary power, will, upon application, stay the proceedings in the action. 1.-Security for costs.] Whenever an infant is lessor of the plaintiff, the court will stay the proceedings until security be given for the costs, unless a responsible person has been made plaintiff, or the prochein ami, or guardian, undertakes to pay them. So if the lessor resides abroad d. But the court will not stay the proceedings where one only of two lessors of the plaintiff resides abroad, for the defendant has the party, who is not abroad, as a security e. So if the lessor of the plaintiff Doe d. Cotterill v. Wylde, 2 B. & A. 472. Doe d. Antrobus v. Jepson, 3 B. & A. 402. Anon. 1 Wils. 130. 1 Cowp. 128. Noke v. Windham, Stra. 694. d B. N. P. 111. Adams, 354. When the plaintiff is an infant lessor of the or abroad, he must give se curity for the costs. The court will stay proceedings in a second ejectment until the costs of a prior one be paid, if the title be the same. dies during the action the court will stay the proceedings until security be given for the costs". And when the lessor is unknown to the defendant, the latter may demand an account of his residence, or place of abode, from the lessor's attorney, and if he refuse to give it, or give a fictitious account of a person who cannot be found, proceedings will be stayed until security for the costs be given b. 2.-Payment of costs in case of a second ejectment.] Also the court will stay the proceedings in a second ejectment until the costs are paid of a prior one, even though it be brought by a third person, or for different premises, if the title be the same. Thus, proceedings have been stayed where one of the lessors of the plaintiff in the first action died before the commencement of the second; where in the second ejectment two trustees were added to the lessors; where part of the lands were occupied by new tenants; where the second action was between the heir of the plaintiff's lessor, and the heir of the defendant in the first action d. And the rule applies as well to a case where the second ejectment is brought by the assignee of an insolvent debtor, the first having been brought by an insolvent, as to a case where the second has been brought by the same party as the first. Therefore, where A. having brought ejectment, and had judgment of nonsuit against him, after which he took the benefit of the insolvent debtors' act, having inserted the costs in his schedule, and his assignee brought a second ejectment; it was held, that the proceedings should be stayed until the costs of the first were paid. And it is immaterial that the second ejectment is brought in a different court from the first'. * Thrustout d. Turner v. Grey, liams v. Holdfast, 6 T. R. 223. 2 Stra. 1056. Keene d. Angel v. Angel, 6 T. R. e Doe d. Standish v. Roe, 5 B. & Ad. 878. 9 N. & M. 468. See Doe d. Chadwick v. Law, 2 Bl. 1180. f Doe d. Walker v. Stephenson, But the courts will not stay the proceedings in the second action, where the party against whom the application is made, is already in custody under an attachment for non-payment of the costs of the first a. When the court will not stay in a second Though the court may stay proceedings in a new ejectment until the costs of a former ejectment, between the same parties, and also the costs of an action for mesne profits dependent proceedings thereon, are paid b; yet they will not extend the rule to include ejectment. the damages in the action for the mesne profits, however vexatious the proceedings of the present lessors of the plaintiff may have been c. Nor will they stay the proceedings if it clearly appear that the verdict in the first action was obtained by fraud or perjury d; nor will they in any case in which they stay proceedings, further interfere, so as to compel the claimant to pay the costs by a particular day, or be nonprossede. Where an heir at law brought ejectment for part of the demised premises and failed, and then brought a second ejectment against other parties for other parts; the court refused to stay proceedings until the costs of the first were paid f. A party cannot move to stay the proceedings in a second ejectment, until the costs in the first be paid, before he has entered into the consent rule, for he has no interest, and cannot complain of being harassed. But where the former action was discontinued before the consent rule was entered into, the court stayed the proceedings in the second until the costs of the former were paid h. There is no particular stage of the proceedings in which it is necessary to move the court for this rule, except that, as we have shewn, the rule will not be granted before the defendant has appeared. 3 B. & P. 22. Doe d. Chadwick v. Law, 2 Bl. 1158. See Doe d. Carthew. Brenton, 6 Bing. 469. a 2 Sell. Prac. 232. Adams, 359. Doe d. Pinckard v. Roe, 4 East, 585. Doe d. Church v. Barclay, 15 East, 232. 4 Doe d. Rees v. Thomas, 2 B. & C. 622. e Doe d. Sutton v. Ridgway, 5 B. & A. 523. f Doe d. Thomas v. Harris, 4 M. Doe d. Crockett v. Roe, 1 H. & h Doe d. Langdon v. Langdon, 5 |