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Trinity Terms respectively, were unable to prosecute ejectments, so as to try the same at the assizes immediately ensuing; but now by stat. 11 G. 4. and 1 W. 4. c. 70. s. 36. [23rd July, 1830,]" in all actions of ejectment by any landlord against his tenant, or against any person claiming through or under such tenant, for the recovery of any lands or hereditaments where the tenancy shall expire, or the right of entry shall accrue in (25) or after Hilary or Trinity Terms respectively, it shall be lawful for the lessor of the plaintiff, at any time within ten days after such tenancy shall expire, or right of entry accrue, to serve a declaration in ejectment, intitled of the day next after the day of the demise in such declaration, whether the same shall be in term or in vacation, with a notice thereunto subscribed, requiring the tenant in possession to appear and plead within ten days, and proceedings shall be had, and rules to plead entered and given, as nearly as may be, as if such declaration had been duly served before the preceding term. Provided, that no judgment shall be signed against the casual ejector, until default of appearance and plea within such ten days, and that at least six clear days' notice of trial shall be given to the defendant, before the commission day of the assizes at which such ejectment is intended to be tried (26). Provided also, that defendant may at any time before trial, apply to a judge, by summons in the usual manner, for time to plead, or for staying or setting aside the proceedings, or for postponing the trial until the next assizes, and the judge may make such order as to him shall seem expedient. By s. 37, the declaration may be entitled specially of the day next after the day of demise, whether in term or in vacation. The foregoing statute is confined to issuable terms. Doe v. Roe, 2 C. and J. 45.
(25) That is, in full term. Trinity Term begins on the 22nd of May, (s. 6.) Where the right accrued on the 20th of May, after the essoign day, but before the first day of term, it was holden, that the statute did not apply. Doe v. Roe, 1 D. P. C. 79.
(26) It is not necessary to prove, at the trial, under this section, the notice of trial. Doe d. Antrobus v. Jephson, B. R. E. T. 1832. Jervis's New Rules and Statutes, 3rd ed. p. 143. n.
VII. Of the Service of Declaration.
THE tenant or tenants in possession may be served personally at any place. But in cases where tenant in possession cannot be served, service on the wife of tenant in possession must be either on the land in question, or at the dwelling-house of the husband. In this case from the fact of the wife being served on the premises, or at the dwellinghouse of the husband though not on the premises, the court presumes that the parties are living together as man and wife, and that the husband has notice of the proceedings: and on this presumption, such service is deemed good. Where premises demised on lease to one person, have been underlet to others, it is necessary to serve separately all the under-tenants".
Service on the servant, child, or niece, of the tenant in possession, on the premises, is good service, provided the service be afterwards acknowledged by the tenant himself, and it appears that he has received it before the terma, but not otherwise, and a mere acknowledgment of the wife is not sufficient. If the tenant or his wife refuse to receive the declaration, &c. a copy of it should be left for them, or affixed to the premises; so if there be not any person in possession of the thing demised, a copy of the declaration 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 judgment 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 ruled. Service before the first day of the term is now sufficient.
y Doe d. Morland v. Bayliss, 6 T. R. 765.
z Doe d. Ld. Darlington v. Cock, 4 B. and C. 259.
a Roe Lessee of Hambrook v. Doe, 14 East, 441.
b Doe d. Ld. Dinorben v. Roe, 2 M. and W. 374.
c 1 Bos. and Pul. 384.
d See Sprightly v. Dunch, 2 Eurr. 1116. Fenn v. Denn, 2 Burr. 1181. Lessee of Methold v. Noright, 1 Bl. R. 290. Gulliver v. Wagstaff, 1 Bl. R. 317.
e R. G.T. T. 1 W. 4. See ante, p. 723.
VIII. Of the subsequent Proceedings-Judgment against casual Ejector-Appearance of Defendant-Con
sent Rule-Stat. 11 G. 2. c. 19. s. 13. enabling Landlord to defend.
If 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. Before this motion can be made, a rule to plead must be given1, 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. 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.
2. Where the Premises lie elsewhere than in London or Middlesex.
[See ante, stat. 11 G. 4. and 1 W. 4. c. 70. s. 36.]
The motion for judgment in this case may be made at any time within the term; because the tenant has four days after the end of such term to appear in.
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 ap
f R. T. 18 Car. 2 B. R.
pear 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 judgment 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 defendant was in possession at the time of ejectment brought, and many plaintiffs having been non-suited 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 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.
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' improvedi 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 eject
g Reg. Gen. B. R. M. T. 1820. 4 B. and A. 196. C. B. H. T. 1821. 2 B. and B. 470. Exch. 2 Geo. 4.
h Doe d. Greaves v. Raby, 2 B. and Ad. 948.
i See Crocker v. Fothergill, 2 B. and A. 652.
ment 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 orders. 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. 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. 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 landlorde. 3. Cestui que trust, not having been in possession. 3 T. R. 783. 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 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
b Landlord might have defended with
e Doe d. Pearson v. Roe, 6 Bingh. 613. f Arg. per Eyre, Serj. and said by the reporter to be the constant practice. Exp. Beauchamp, Barnes, 4to. edit.