and notice should be affixed to some conspicuous part. Where there is any thing unusual in the manner of serving the declaration, it should be mentioned to the court on moving for judgment against the casual ejector; and if the court are satisfied that the tenant has had notice of the declaration, they will make the rule for judg ment absolute in the first instance; if doubtful, they will grant a rule requiring the tenant to show cause why the service should not, under the special circumstances, be deemed sufficient, and they will prescribe the mode of serving the rule (a). Service (b) before the first day of the term is now sufficient. It was holden not to be sufficient that the declaration served on a member of the family of the tenant in possession, came into the hands of the tenant before the first day of the term, unless evidence that the declaration had so reached the hands of the tenant, was in the possession of the lessor of the plaintiff early enough to enable him to move for judgment on the first day of the term (c). In a later case, where it appeared that after repeated unsuccessful attempts to effect personal service on the tenant, a copy of the declaration was left with his clerk, at his office, on the premises, on the 21st of May, the day before the term, and that the declaration and notice were on the same day served at his residence, on his daughter, and on the following day a letter from the tenant's attorney, dated May the 24th, was received by the attorney of the lessor of the plaintiff, stating that the tenant had put the declaration into his hands, the rule absolute was granted (d). Semble, that although an administrator may lay the demise on a day after the death of intestate, and before grant of administration, yet the declaration ought not to be served until after administration has been granted (e).

VIII. Of the subsequent Proceedings, Judgment against Casual Ejector, p. 729; Appearance of Defendant, p. 730; Consent Rule, p. 731; Stat. 11 Geo. II. c. 19, s. 13, enabling Landlord to defend, p. 732.

Ir the tenant in possession does not appear according to the notice subscribed, and enter into a rule called the consent rule, the plaintiff may, at the beginning of the term in which the tenant in possession ought to have appeared, move the court for judgment against the casual ejector. It is not too late to make this motion

(a) See Sprightley v. Dunch, 2 Burr. 1116; Fenn v. Denn, 2 Burr. 1181; Lessee of Methold v. Noright, 1 Bl. R. 290; Gulliver v. Wagstaff, 1 Bl. R. 317; Doe d. Hindle v. Roe, 3 M. & W. 279.

(b) R. G. T. T. 1 Will. IV. See ante, p. 723.

(c) Doe d. Emsley v. Roe, 1 M. & Gr.

840.

(d) Doe d. Gibbard v. Roe, 3 M. & Gr. 87; 3 Scott's N. R. 363.

(e) See argument in Keene v. Dee, B. R. Ireland, Alcock & Napier, 496. n.

in the term following that in which the tenants have had notice to appear (d). Before this motion can be made, a rule to plead must be given (e), and the motion itself must be founded on an affidavit of service of declaration, either on the tenant in possession, or in such manner as shall satisfy the court, that the tenant in possession has had notice of the proceeding; and the affidavit must state that the declaration has been explained (ƒ) as well as read over at the time of service. The time for appearance depends on the situation of the premises.

1. Where the Premises lie in London or Middlesex.

The tenant in possession must appear within four days, inclusive, next after the motion for judgment, if such motion be made at the beginning of the term. But where it is in a more advanced stage of the term, the court will exercise their discretion, and order the tenant to appear immediately, or within one or two days, so that the plaintiff may give notice of trial within the term. If the motion for judgment is made within the last four days of the term, the tenant has until two days before the essoign day of the subsequent term to appear in.

By R. G. C. P. (g), motion for judgment against casual ejector in ejectment in London and Middlesex, may be made on any day during term.

2. Where the Premises lie elsewhere than in London or Middlesex.

[See ante, p. 727, stat. 11 Geo. IV. and 1 Will. IV. c. 70, s. 36.] The motion for judgment in this case may be made at any time within the term, in which the tenant is called on to appear; because the tenant has four days after the end of such term to appear in. This motion may also be made in the term after that (h) in which the tenant is required to appear.

By R. G. H. 4 Vict. (i), a party entitled to appear to a declaration in ejectment, may appear and plead thereto at any time after service of such declaration, and before the end of the fourth day after the term on which the tenant is required by the notice to appear, and may proceed to compel the plaintiff to reply thereto, or may sign judgment of non pros, notwithstanding such plaintiff may not have obtained a rule for judgment on such service of declaration; and a plaintiff who may have omitted to obtain a rule for judgment within the time prescribed by the present rules and practice, shall be entitled, on production of such plea, to an order of a

(d) Doe d. Walker v. Roe, 9 M. & W.

426.

51.

(e) R. T. 18 Car. II. B. R.

(f) Doe d. Wade v. Roe, 6 Dowl. P. C.

(g) 4 Bingh. N. C. 366.

(h) Doe d. Barth v. Roe, 4 Bingh. N. C. 675.

(i) 2 M. & Gr. 239; 2 Scott's N. R. 430 ; 1 Q. B. 1; 4 P. & D. 522.

judge for leave to draw up a rule for judgment, as of the time of which such rule for judgment should have been obtained.

If the tenant appears, then he enters into the consent rule, the substance of which is as follows:-1st, He consents to be made defendant instead of the casual ejector. 2nd, To appear at the suit of the plaintiff; and if the proceedings are by bill, to file common bail. 3rd, To receive a declaration and plead, Not Guilty. 4th, At the trial of the issue, to confess lease, entry, and ouster, and insist upon title only. To this rule are added the following conditions:1st, If at the trial the defendant shall not confess lease, entry, and ouster, whereby plaintiff shall not be able to prosecute his suit, defendant shall pay to plaintiff the costs of the non pros, and judg ment shall be entered against the casual ejector by default. 2nd, If a verdict shall be given for defendant, or plaintiff shall not prosecute his suit for any other cause than the non-confession of lease, entry, and ouster, the lessor of the plaintiff shall pay costs to the defendant. Defendants having, in many instances, put the plaintiff, after the title had been established, to give evidence that the defendant was in possession at the time of ejectment brought, and many plaintiffs having been nonsuited for want of such proof, and such practice being considered as contrary to the true meaning of the consent rule, it was ordered (k), that the defendant should specify, in the consent rule, for what premises he intends to defend, and should consent to confess, that he or (if he defends as landlord) his tenant was in possession thereof at the time of the service of declaration; and if upon the trial he should not confess such possession, as well as lease, entry, and ouster, whereby the plaintiff should not be able further to prosecute his suit, then no costs should be allowed for not further prosecuting the same, and the defendant should pay costs to the plaintiff. N. It is not incumbent on the plaintiff, in ordinary cases, to produce the consent rule (); the only instance in which it can now be necessary to produce the rule is, where the plaintiff, directing his case to certain premises, the other party contends that he does not defend for those; there it may be requisite to produce the rule, to show for what he does defend.

Formerly, by the practice of Q. B., the plea and consent rule were filed at the chambers of one of the judges of that court; but now (m), the plea, with the consent rule annexed thereto, is to be delivered in like manner as pleas in other actions.

Where the tenant in possession is merely an under-tenant to some other person, as soon as the declaration in ejectment is delivered to him, he is obliged, by stat. 11 Geo. II. c. 19, s. 12, to give

(4) Reg. Gen. B. R. M. T. 1820; 4 B. & A. 196; C. B. H. T. 1821; 2 B. & B. 470; Exch. 2 Geo. IV. This rule extends to municipal corporations. Doe d. Parr v.

Roe, 1 Q. B. 700; 1 G. & D. 220.

(1) Doe d. Greaves v. Raby, 2 B. & A. 948.

(m) R. G. H. 1 Vict. 7 A. & E. 972.

notice of such delivery to his landlord, under pain of forfeiting three years' improved (n) or rack rent of the premises holden. N. This penalty does not attach on the tenant of mortgagor, who omits to give him notice of ejectment brought by mortgagee, 1 T. R. 647; because the statute only extends to cases where ejectments are brought inconsistent with landlord's title. This wise provision of the statute was intended to prevent fraudulent recoveries of the possession, by collusion with the tenant of the land. And by the same statute, s. 13, the court where the ejectment is brought, is empowered to suffer the landlord (o) to make himself defendant with tenant, if he shall appear; and by the same clause, although if the tenant shall refuse or neglect to appear, judgment shall be signed against the casual ejector; yet the landlord shall be permitted to appear by himself, on his consenting to enter into the usual rule; and judgment against the casual ejector shall be stayed until further order (p). Who shall be considered a landlord, within the meaning of this act, is sometimes a difficult question to determine the following persons have been so considered: 1. Devisee in trust, 4 T. R. 122. 2. In Doe d. Tilyard v. Cooper, a mortgagee under the defendant was permitted to defend with him (q). The following persons have not been deemed landlords within the meaning of this act: 1. A devisee, where the ejectment was brought by the heir; Roe d. Leake v. Doe, M. 29 Geo. II. C. B. Bull. N. P. 95. 2. A mortgagee, who had never received rent, ib. The question to be considered in all cases is, whether the party applying to defend as landlord, be himself interested in the event of the suit; or whether he be merely set in motion for the purposes of some other person: if the latter be the case, the court will not permit a mortgagee to defend as landlord (r). 3. Cestui que trust, not having been in possession. 3 T. R. 783, In all cases of vacant possession (s), unless such as are within stat. 4 Geo. II. c. 28 (which see in next section,) no person claiming title will be let in to defend ; but he who can first seal a lease on the premises, must obtain possession, and any other person claiming title may eject him if he can; and by the course of the court, no defence can be made in these cases but by the defendant in the ejectment, who is a real ejector. In Martin v. Davis, Str. 914, the court refused to let the parson of Hampstead chapel defend for right to enter and perform divine service only; notwithstanding the case of Hollingsworth v. Brewster, Salk. 256, observing that that case had often been denied since. If a party should be admitted to defend as landlord, whose title is in

(n) See Crocker v. Fothergill, 2 B. & A.

652.

(0) Landlord might have defended with tenant before this statute, Salk. 257; 7 Mod. 70; 3 Burr. 1301; but the 2nd provision in this section is new.

(p) See Jones v. Edwards, Str. 1241.

(q) 8 T. R. 645.

(r) Doe d. Pearson v. Roe, 6 Bingh. 613.

(s) Arg. per Eyre, Serjt., and said by the reporter to be the constant practice. Exp. Beauchamp, Barnes, 4to. edit. 177.

consistent 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 (t).

IX. Of the Proceedings in Ejectment, directed by Stat. 4 Geo. II. c. 28, s. 2, in order to obviate the Difficulties attending Re-entries at Common Law, for Non-payment of Rent Arrear, p. 733; Of the Proceedings where the Possession is vacant, p. 735.

By stat. 4 Geo. II. c. 28, s. 2, it is enacted, "That in all cases between landlord and tenant, when half a year's rent shall be in arrear, and the landlord has a right of entry for non-payment thereof, he may, without a formal demand or re-entry, serve a declaration in ejectment; or, in case the same cannot be legally served, or no tenant be in actual possession, affix the same upon the door of any demised messuage; or, in case such ejectment shall not be for the recovery of any messuage, then upon some notorious place of the lands, &c., comprised in the declaration in ejectment, and such affixing shall be deemed legal service; and in case of judgment against the casual ejector, or nonsuit for not confessing lease, entry, and ouster, it shall appear by affidavit, or be proved on the trial, in case the defendant appears, that half a year's rent was due before the declaration served, and that no sufficient distress was to be found on the premises (u), countervailing the arrears then due, and that the lessor had power to re-enter; then, and in every such case, the lessor in ejectment shall recover judgment and execution, in the same manner, as if the rent in arrear had been legally demanded, and re-entry made; provided (x), that if the tenant, at any time before the trial in such ejectment, shall pay or tender to the landlord or his attorney, or pay into court, the rent arrear and costs, all further proceedings on the ejectment shall be discontinued" (29). It has been supposed that the preceding statute

(t) Doe d. Harwood v. Lippincott, Ad. Eject. 230.

(u) See Doe d. Smelt v. Fuchau, 15

East, 286.
(x) Sect. 4.

(29) Before this statute, courts of law and equity exercised a discretionary power of staying the lessor from proceeding at law, in cases of forfeiture for non-payment of rent, by compelling him to take the money due to him. See the opinion of Lee, C. J., in Archer v. Snapp, Andr. 341; 2 Salk. 597; 8 Mod. 345; 10 Mod. 383: 2 Vern. 103; 1 Wils. 75; 2 Str. 900. By this statute, the service of the declaration in ejectment is substituted for the demand of rent, which, at common law, must