writ of possession, which, being delivered to the sheriff, the plaintiff will be put into possession of the premises in question.

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. 2d, 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 (26) 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 nonpros, and judgment shall be entered against the casual ejector by default. 2d, 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 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*, that the

k Reg. Gen. B. R. M. T. 1820. 4 B. & A. 196. C. B. H. T. 1821. 2 B. & B. 470. Exch. 2. Geo. 4.

(26) The practice is to call the defendant to confess lease, entry, and ouster; and on non-appearance, or refusal to comply with the rule, to call the plaintiff and nonsuit him; then the cause of the nonsuit being indorsed on the postea, the plaintiff is entitled to judgment and execution thereon immediately after the trial, according to the practice of the court of C. B. (Fairfax v. Bentley, C. B. Runn. 242. edit. 1795.) but in B. R. not until the postea be regularly returned on the day in bank. (Lord Palmerston v. Copeland, 2 T. R. 779.) Where there are several defendants for the same premises, and some appear and confess lease, entry, and ouster, but others do not, the practice is, to enter a verdict generally against those who do appear, and to enter a verdict against the plaintiff for those who do not appear; but then the cause of such verdict is indorsed on the postea, which as to them intitles the plaintiff to judgment against the casual ejector for such lands as were in their session. Lord Raym. 729.

pos

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.

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. 2. c. 19. s. 12., to give notice of such delivery to his landlord, under pain of forfeiting three years' improved' 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 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 staid until further order".

Who shall be considered a landlord, within the meaning of this act, is sometimès 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.

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 G. 2. C. B. Bull. N. P. 95. 2. A mortgagee, who had never received rent, ib. 3. Cestui que trust, not having been in possession. 3 R. T. 783.

1 See Crocker v. Fothergill, 2 B. and A. 652.

m Landlord might have defended with tenant before this statute, Salk. 257,

7 Mod. 70. 3 Burr. 1301. But the 2d provision in this section is new. n See Jones v. Edwards, Str. 1241. o 8 T. R. 645.

In all cases of vacant possession", unless such as are within stat. 4 Geo. 2. 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 detend 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.

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

vacant.

BY stat. 4 Geo. 2. 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, countervailing the arrears then due, and that the

n Arg. per Eyre, Serj. and said by the Reporter to be the constant practice. Exp. Beauchamp. Barnes, 4to. edit. 177.

o See Doe d. Smelt v. Fuchau, 15 East.

286.

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, 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" (27).

It has been supposed that the preceding statute only applied to cases of ejectment brought after half a year's rent due, where no sufficient distress was to be found upon the premises. But in a late case (Roe v. Davis, 7 East, 363.) it was holden, that the statute was more general in its operation.

The application to the courts, on the part of the tenant, to stay proceedings, must, by the very terms of the act, be made before trial.

In ejectment by a landlord', the tenant moved to stay proceeding, upon payment of rent arrear and costs. On a rule to shew cause, it was insisted, for the plaintiff, that the case was not within the preceding statute; because it was not an ejectment founded singly on the act, but it was brought like

p S. 4.

q Roe v. Davis, 7 East, 363.

r Pure d. Withers v. Sturdy, H. 1752. Bull. N. P. 97.

(27) 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 have been made upon the day when the forfeiture accrued, in case of non-payment. Ejectment on a demise laid on the 10th May, 1824. Defendant was tenant under a lease, by which the rent was made payable at Lady Day and Michaelmas, and in which there was a proviso for re-entry on non-payment of rent for thirty days. Half a year's rent was due at Lady Day, 1824, and there was no sufficient distress on the premises; the declaration was served on the 14th May, 1824. It was holden that, although the /service of declaration was on a day subsequent to the day of demise, the plaintiff was entitled to recover, inasmuch as the title must be taken to have accrued on the 30th day after the rent became due, viz. the 24th of April. The statute does not require that the day of demise must be the very day when declaration is served. Doe d. Lawrence v. Shawcross, 3 B. and C. 752.

wise on a clause of re-entry in the lease for not repairing, and the lease was produced in court. However, the rule was made absolute, with liberty for the plaintiff to proceed upon any other title.

Where an ejectment is brought on the preceding statute for the forfeiture of a lease', acceptance of rent afterwards, by the landlord, has been holden a waver of the forfeiture; for it is a penalty, and by accepting the rent, the party waves the penalty.

Landlord having a right of re-entry for non-payment of rent brought an ejectment and proved a demand of half a year's rent after the day on which it was due, and a refusal on the part of the defendant to pay it before the re-entry. It appeared that there was a sufficient distress on the premises during the whole time. It was holden', that the lessor of the plaintiff could not recover either at common law, or under the preceding statute; not by the former, because the reut was not demanded on the day when it became due; Co. Lit. 201.7 Rep. 28.; nor by the latter, because there was a sufficient distress on the premises.

Upon a lease reserving rent payable quarterly, with a proviso, that if the rent be in arrear twenty-one days next after day of payment, being lawfully demanded, the lessor may reenter: it was holden, by three judges (dissentient Lord Ellenborough, C. J.), that five quarters being in arrear, and no sufficient distress on the premises, the lessor might re-enter without a demand.

Of the Proceedings where the Possession is vacant.-In cases between landlord and tenant, where one half year's rent is in arrear, and the landlord has a right of entry, the mode of proceeding, where the premises are untenanted, is marked out by the preceding statute. In other cases of a vacant possession the mode of proceeding is thus:

A. (the person claiming title) by letter of attorney empowers B. to execute a lease, in the name of A., of the premises in question, to C. This lease is executed on the premises, B. and C. only being thereon; then B. leaves C. in possession, who is turned out by D., to whom, while on the premises, E. delivers a declaration in ejectment. A rule to plead having been given, and not complied with, a motion is

s Per Aston, J. in Doe v. Batten, Cowp. u Doe d. Scholefield v. Alexander, 2 Maule and Sclwyn, 525.

247.

t Doe d. Forster v. Wandlass, 7 T. R.