a case, having obtained judgment, he should neglect to take away the rule before the expiration of two days after the term in which the rule was obtained, the court will not assist him in the next term. (Anonymous, 2 Chitty's R. 188.) And it may be stated that the English common law practice requires that the rule for judgment against the casual ejector shall be drawn up, and taken away from the office of the clerk of the rules, within two days after the end of the term in which the rule has been obtained, or no further proceedings can be had in the action. (Adams on Eject. 249.)

The rule for judgment against the casual ejector cannot be drawn up conditionally. It must be absolute and unequivocal in its terms, and take effect when entered. (Anonymous, 2 Chitty's R. 499.)

By the English common law practice, the clerk of the rules, both in the court of queen's bench and common pleas, was required to keep a book, in which should be entered all the rules which from time to time were to be delivered out in ejectments; in which must be mentioned the number of the entry, the county in which the premises lay, the names of the nominal plaintiff, the first lessor of the plaintiff (with the words "and others" if there were more than one), and also the name of the casual ejector; and, unless the rule for judgment was drawn up, and taken away from the office of the clerk of the rules within two days after the end of the term in which the ejectment was served, no rule could be drawn up or entered in the book, nor could any proceedings be had in such ejectment. (Regular Rules of K. B., 4 Term R. 1. Regular Rules, C. P., 1 Taunt. R. 317.)

In the American states, where the old forms of proceeding in ejectment cases are observed, the practice is to file proof of due service of the declaration and notice on the tenant in possession in the office of the clerk of the court in which the action is brought during the term of the court at which the defendant is required to appear, and on the day in term indicated by the notice at the foot of the declaration; and thereupon a rule is entered, on motion of the plaintiff's attorney, in the common rule book kept by the clerk, requiring the defendant to appear and enter into the consent rule in twenty days thereafter, or judgment will be entered against the casual ejector by default. If the rule is not complied with, the default of the casual ejector is entered, and then the plaintiff may at any time after four days in term shall have elapsed, after the entry of the default, enter a rule in the common rule book kept by

the clerk, for judgment absolute in favor of the plaintiff for the premises claimed. (Vide Truer v. Bowman, 3 Penn. R. 70.)

In case the declaration and notice in ejectment are not served on the tenant in possession personally, the motion for the rule requiring the defendant to appear in the action must be made to the court, as well in the United States as in England; and if the rule is granted, then the practice subsequently is the same as when the papers were personally served, unless the court, for good cause, order differently. But the practice in these cases in the United States is at present regulated by statute, as a general thing, and these statutory provisions will be explained hereafter.

As before suggested, the default of the tenant in possession for not appearing must be entered before the judgment by default can be entered against the casual ejector; but it has been held, that inserting the word "judgment" in the entry of the tenant's default for not appearing, etc., in such case, will not alter the legal effect of the entry; but it will, notwithstanding, be good; and the word "judgment" may be rejected as surplusage. So also the judgment in such case must be against the casual ejector; but, if the rule for judgment generally should omit the words "against the casual ejector," the rule is held to be good for judgment against the casual ejector. (Jackson v. Stiles, 5 Cow. R. 418.)

A motion for judgment against the casual ejector will not be entertained where the proceedings in the cause are stayed by an injunction. (Doe v. Roe, 2 Scott's N. R. 548.) But the court will grant a rule for judgment against the casual ejector after the appearance of the tenant in possession. (Doe v. Roe, 3 Jur. 460, C. P.)

Where the tenants, having undertaken to appear, enter into the common consent rule, plead instanter, and take short notice of trial, made no defense at the trial, but sued out a writ of error when judgment was signed, the court of common pleas of England allowed the lessor of the plaintiff to take his judgment against the casual ejector. (Doe v. Roe, 3 Bing. R. 169. Same Case, sub nom. Doe v. Frisley, 10 Moore's R. 574.) And where a person obtains a rule to defend as landlord, the plaintiff nevertheless may sign judgment against the casual ejector, but may not take out execution without further order. (Doe v. Bennet, 4 Barn. & Cres. R. 897. Same Case, 7 Dowl. & Ryl. R. 61.)

Judgments against the casual ejector irregularly obtained will, of course, be set aside, provided the application be made within a

reasonable time after the judgment was entered; and, where the defendant has merits, the courts are very liberal in setting aside a regular default, upon just and equitable terms, to let in the tenant to defend his possession. If the judgment has been regularly signed, the application to open the default on the merits must be made to the court at the earliest practicable period after the judgment was obtained, and then, if it appears to the court that the ends of justice require it, the judgment will be set aside on terms that will indemnify the plaintiff, and the defendant will be allowed to defend. (Vide Jackson v. Stiles, 4 Johns. R. 489. (Jackson v. Stiles, 1 Caines' R. 503. Jackson v. Stiles, 3 ib. 133. Den v. 2 Halstead's R. 161. Goodtitle v. Badtitle, 4 Taunt. v. Roe, 5 ib. 205. Doe v. Roe, 4 Dowl. P. C. 115. 11 Adolph. & Ell. R. 333. Doe v. Roe, 13 Price's R. 260. Sed vide Doe v. Roe, Burr. R. 1996. Dobbs v. Passer, Strange's R. 975. Mason v. Hodgson, Barn. R. 250. Den v. Fen, 5 Halst. R. 237. Den v. Applegate, 7 ib. 241. Gover v. Cooley, 1 Harr. & Gill's R. 7. Breading's Heirs v. Taylor, 6 Dana's R. 226.)

R. 820. Doe

Doe v. Roe,

The courts are, of course, more stringent as to granting rules to open a regular judgment after the possession of the premises in dispute has been changed, than while the parties continue in the relative positions they occupied at the commencement of the proceedings; but in a proper case the judgment will be opened, and the possession restored to the tenant. (Vide Doe v. Roe, 3 Taunt. R. 506. Doe v. Williams, 2 Adolph. & Ell. R. 381. Doe v. Gruble, 5 Barn. & Cres. R. 457.)

CHAPTER XXIV.

OF THE APPEARANCE OF THE DEFENDANT IN THE ACTION OF EJECTMENT- WHO MAY DEFEND THE ACTION

THE CONSENT RULE.

By the general rules and regulations of the English courts, lately in force, a party entitled to appear to a declaration in ejectment might appear and plead thereto at any time after service of such declaration, and before the end of the fourth day after the term in which the tenant was required by the notice to appear, and might proceed to compel the plaintiff to reply thereto, or might

sign judgment of non pros., notwithstanding such plaintiff may not have obtained a rule for judgment on such service of declaration; and that a plaintiff, who may have omitted to obtain a rule for judgment within the time prescribed by the rules and practice of the court, should be entitled, on production of such plea, to an order of a judge for leave to draw up a rule for judgment as of the time at which such rule for judgment should have been obtained. (General Rules and Regulations, 2 Scott's N. R. 430. 7 Mees. & Wels. 346. 5 Jur. 2. 1 Adolph. & Ell. N. S. 2. 2 Man. & Gr. 239.)

By the present statute in force in England, the action of ejectment is commenced by the service of a writ which "shall state the names of all the persons in whom the title is alleged to be, and command the persons to whom it is directed to appear, within sixteen days after service thereof, in the court from which it is issued, to defend the possession of the property sued for, or such part thereof as they may think fit, and it shall contain a notice, that, in default of appearance, they will be turned out of possession." (15 and 16 Victoria, ch. 76, § 169.)

In the American states, the practice with respect to the appearance of a tenant in an action of ejectment is generally regulated by statute, and he must appear within the time specified in the notice at the foot of the declaration served. Where the practice in this respect varies by statute in any of the several states, the same will be noted hereafter.

If the tenant neglects to appear within the time required, a rule for judgment against the casual ejector will be granted as stated in the preceding chapter; and the landlord has no right to appear in the action of ejectment until this rule for judgment against the casual ejector is obtained. (Doe v. Roe, 7 Scott's R. 769.)

II. The question as to what parties may defend the action of ejectment is one of considerable interest, and not always entirely free from doubt. The tenant in possession is prima facie the person interested in the premises, and is therefore the party on whom the declaration and notice are served; although it often happens that the land is claimed by some person out of possession, who alone is interested in vindicating the title. By the common law, the tenant in possession was under no obligation to give notice to his landlord of the service of the declaration and notice in ejectment, and if the tenant did give the notice, the landlord was not

permitted to appear and defend the action unless the tenant consented to become a co-defendant with him; and therefore much inconvenience and expense not unfrequently happened to the party really interested to defend the action, by the negligence or fraud of the tenant in possession. (Goodright v. Hart, Strange's R. 880. Anonymous, 12 Mod. R. 211.) To meet this difficulty, and remedy these imperfections of the common law, the British parliament passed an act by which the courts are authorized to suffer the landlord to make himself defendant by joining with the tenants, in case they shall appear; and in case the tenants neglect or refuse to appear in the action, the court will permit the landlord to do so, judgment being first signed against the casual ejector, and order a stay of execution upon the judgment against the casual ejector, until the further order of the court. (11 George II, ch. 19, § 13.)

It has been asserted, that this statute is only a legislative sanction of the previous uniform practice of the courts in the cases referred to, and it may not be uninteresting or unprofitable to give a brief history of the practice of the courts in such cases prior to the above enactment.

In a case before the court of king's bench in 1762, when Lord Mansfied presided in that court, Mr. Justice Wilmot, in considering this very statute, observed that it was very remarkable that two different acts of parliament had been made, at near five hundred years' distance, upon the very same subject, when there was no occasion for either; namely, the statute of Westminster, 2, which seems to have been passed in 1285, and this act of 11 George II, chapter 19.

The statute of Westminster, he said, was not a new provision; for, before that statute, all those that stood behind the tenant in possession had always a right, at common law, to come in and be received, pro interesse suo, to defend the possession; which was very material to them, and by the change whereof they would have been greatly incommoded. And he said he was persuaded that the more this doctrine of receit was looked into, the stronger this would appear. And thereupon he wondered that there should have been any doubt, before the act of 11 George II, of admitting landlords to defend in the stead of the tenant in possession; especially as they were suffered to make themselves co-defendants with the tenants. And, after referring to Coke and Bracton,