Cow. R. 442.) And from the fact that the defendant in ejectment is required to apply specially to the court for leave to enter into a a special consent rule, he is entitled to have the costs of his application taxed in his final bill of costs, if he is successful. (Jackson v. Lyth, 4 Cow. R. 16.)

The courts always allow the special consent rule, only requiring the defendant to consent to admit ouster at the trial, where it is actually proved, unless it appears upon the application that the claimant has been actually obstructed in his occupation. (Anonymous, 7 Mod. R. 39. Oates v. Brydon, 3 Burr. R. 1895. Doe v. Roe, 2 Taunt. R. 397.) This statement, however, should be qualified to the effect that the privilege of the special consent rule is limited to the co-tenant himself, and will not be extended to his under-tenant. (Doe v. Roe, 4 Dowl. P. C. 628.)

If the defendant claim title as tenant in common, he ought to enter into the consent rule specially; otherwise, if he enter into the usual consent rule, he cannot object that no actual ouster was proved at the trial. (Jackson v. Denniston, 4 Johns. R. 311.) And where the defendant in ejectment means to defend as a tenant in common with the lessors of the plaintiff, on the ground that there has been no ouster of the co-tenants, he should apply to the court, on affidavit, for leave to enter into the consent rule specially, stipulating to confess lease and entry only, not ouster, unless an actual ouster of the lessors should be proved at the trial. (Jackson v. Lyons, 18 Johns. R. 398.)

In an action of ejectment against one tenant in common, who has been ousted, against his co-tenant, the latter may enter into the consent rule, where he does not dispute the title, as to part of the premises only, and the plaintiff may take judgment as to the residue, and recover the mesne profits thereof from his co-tenant, and let the action go on as to the residue. (Langendyck v. Bur hans, 11 Johns. R. 461.) And the rule would seem to be general, that, in ejectment, where a tenant appears and defends for a part only of the premises, the plaintiff may proceed and take judgment against the casual ejector for the residue on the usual affidavit. For example, the defendant entered into a special consent rule, describing particularly the premises for which he intended to defend, leaving about seventy-seven acres of land in the farm for the recovery of which the suit was brought, as to which neither the defendant nor any other person appeared. The plaintiff, on

entering the rule for the tenant to appear and enter into the consent rule, filed the usual affidavit of service of a copy of the declaration in ejectment, and notice on the defendant, describing him as tenant in possession of the premises, or of some part thereof. Not receiving notice of any other appearance or other consent rule than that above described, the plaintiff entered the default of the tenant and took a rule for judgment against the casual ejector for that portion of the lands not included in the consent rule, perfected the judgment, and obtained possession of the land on a writ of habere facias possessionem. A motion was made to set aside the default and subsequent proceedings as irregular; but the court held that the plaintiff was regular, and denied the motion. (Underwood ads. Jackson, 1 Wend. R. 95.) But, in Pennsylvania, it is held, that in ejectment the defendant must confess "lease, entry and ouster" for all the tenements laid in the declaration; confession for a part only, it seems, will not be allowed. (Wilson v. Campbell, 1 Dallas' R. 126.)

The practice requires that the consent rule in ejectment shall admit at the trial that the defendant was in possession of the premises specified at the time of the service of the declaration; and it has been held that this extends to municipal corporations; and the corporation must confess in that form, though the ejectment be brought to enforce an elegit against their lands, and the defense be, that the lands are not possessed by the corporation for any but public purposes; and therefore were not liable to execution. The required confession in the consent rule does not exclude such defense. (Doe v. Roe, 1 Adolph. & Ell. R. N. S. 700.) The court will not let in a corporation to defend an ejectment without entering into the usual consent-rule to admit possession, on the ground, whether well or ill-founded, that the land of a corporation cannot be taken in ejectment on a writ of elegit upon a judgment against the corporation for debts contracted since the passing of the municipal corporation act. (Doe v. Roe, 1 Gale & D. R. 202, 220. Same Case, 6 Jur. 101.)

It has been held that an admission in the consent rule that the defendant was in possession by "a certain tin-bound (setting out its abuttels), containing a certain mine, etc.," is insufficient under the rule requiring the consent rule to admit the party to be in possession of the premises claimed. The consent rule must admit the party to be in possession of something for which ejectment will lie;

The defense in such case

and a tin-bound is a mere easement. should be for the mine which the defendant is working under the tin-bound. (Doe v. Alderson, 1 Mees. & Welsb. R. 210.)

It has been held in the state of Tennessee, that an agreement to confess lease, entry, and ouster of "all the lands described in the defendant's title papers," is not a sufficient agreement upon which to admit the landlord to appear in the action of ejectment as defendant, and defend the same. (Carter's Lessee v. Parrot, 1 Tenn. R. 65.) And in that state, it seems that, in order to admit one as defendant in an ejectment, it must appear of record that he entered into the consent rule, gave security for costs, and pleaded not guilty. (Price v. Carter, 5 Yerger's R. 302.) Confession of lease, entry and ouster, in ejectment, it is held, extends to an entry to complete the title to the action, but not to an entry which is requisite to regain and revest the possession. (Holt v. Smith, 1 Har. & McHenry's R. 273.) According to the late English practice, and the practice in some of the states, the consent rule will, in all cases, be sufficient to prevent a nonsuit for want of a real lease, and of a real entry and ouster; and if the consent rule in ejectment requires the defendant to confess, on the trial, the possession of the premises, as well as the lease, entry and ouster, it is evidence of the possession as well as the other facts which are admitted. (Rawley v. Doe, 6 Blackf. R. 143.)

If a party appear with others and enter into the consent rule by mistake, on a proper application to the court his name may be struck out of the rule, usually upon the condition, however, that he undertake to permit execution to issue for any part of the premises in dispute of which he may be found to be in possession. (Doe v. Snape, 1 Dowl. P. C. 314.)

Twelve defendants in ejectment entered into a general joint consent rule, not specifying the premises for which they severally defended; at the assizes the judge made an order that the record should be amended, by allowing two of the defendants to withdraw their plea, and suffer judgment by default, but no express order was made as to any amendment of the consent rule. The trial proceeded; those two defendants did not appear, but the other ten made a complete defense; the court held, that the order did not virtually operate as an amendment of the consent rule also, and that the plaintiff was, notwithstanding the order, entitled to a verdict against all the defendants. But the court directed that

the ten defendants who went to trial should be allowed the costs of their defense on taxation. (Doe v. Hughes, 2 Cromp. Man. & Roscoe's R. 281. Same Case, 4 Dowl. P. C. 442. Same Case, 5 Tyr. R. 957. Same Case, 1 Gale's R. 263.)

The authorities are not uniform as to whether the plaintiff is required to produce the rule to confess lease, entry and ouster, as a part of his case on the trial of an ejectment. Certainly in one case, it was held that the plaintiff was required to produce the rule on the trial. (Doe v. Lamble, 1 Moore & Malkin's R. 237.) But in other English cases it has been held in so many words, that at the trial of an ejectment it is not necessary for the lessor of the plaintiff to produce the consent rule as part of his case, so as to require the defendant to confess lease, entry and ouster; and further, that if the defendant appear and refuse to confess lease, entry and ouster, the lessor of the plaintiff is not entitled to have a verdict entered for him, but must be nonsuited in the ordinary way; but he is entitled to sign judgment against the casual ejector, and issue execution. (Fleming v. Armfield, 1 Dowl. N. S. 327.) By the late English practice, it would seem, that where there was no doubt as to the identity of the premises sought to be recovered with those for which the tenant defends, the lessor was not required to produce the consent rule. (Doe v. Raby, 2 Barn. & Adolph. R. 948.) And, of course, if the defendant confesses the ouster, according to the agreement in the consent rule, it is not necessary to prove an actual ouster on the trial. (Davis v. Whitesides, 1 Bibb's R. 510. Armstrong v. Timmans, 3 Harrington's R. 342.)

By the form of the consent rule last adopted in England, while the ordinary practice was in vogue, proof at the trial of the possession by the defendant of the disputed premises was unnecessary, and as the consent rule was annexed to the record, no questions could arise as to the necessity of its production as part of the plaintiff's case, and it would seem from a late case under that practice that the defendant might be called on to confess lease, entry and ouster, in the ordinary manner, although the consent rule should not have been drawn up. (Doe v. Armfield, supra.) Of course, under a special consent rule, to admit lease, entry and ouster, in case an actual ouster be proved, but not otherwise, such ouster must be shown, or the plaintiff will fail. (Jackson v. Leek, 12 Wend. R. 105.) And in one case it was held that the

lessor of the plaintiff in ejectment is bound to prove the defendant in possession of the land for which the action is brought, although the latter have entered into the general consent rule. (Alburton v. Heirs of Redding, 1 N. C. Law Repos. 274.)

But from the fact that the practice in respect to the consent rule required by the ordinary practice in ejectment has been greatly changed, or entirely abolished, both in England and in many of the American states, perhaps it would not be discreet to dwell upon the subject longer in this place; but from the fact that the principles considered in this chapter have such a general application to the action of ejectment, in many of its aspects, even as at present prosecuted in all the states, and in England, an acquaintance with the subject is necessary and important.

CHAPTER XXV.

THE PLEA OF THE DEFENDANT IN THE ACTION OF EJECTMENT · THE ISSUE IN THE ACTION THE PLEA PUIS DARRIEN CONTINUANCE.

THE plea of the defendant in the action of ejectment at common law is invariably the plea of the general issue. As has been before observed, this plea is required to be left by the defendant with the agreement for the consent rule, and if not so left the plaintiff must give a rule to plead, and then judgment may be entered for want of a plea as in other actions, without a special motion in court for that purpose. This practice is regulated by the rules of the court, and is in accordance with the rules lately in force in the English courts, and also in the American courts, when and where the common law practice prevailed.

The general issue in the action of ejectment is not guilty, and in England, when the common-law practice prevailed there, was substantially in the following form:

And the said C. D., by L. M., his attorney, comes and defends the force and injury, when, etc., and says he is not guilty of the