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When the

claimant does

not appear.

Sheriff's right to poundage.

To costs.

Rules and orders, &c. may be entered of record, and made evidence.

.

a distress for his renta. When an adverse claim is set up to goods seized by the sheriff, and the latter applies to the court for relief, under the above statute, and the adverse party does not appear to support his claim, the court will bar his claim as to the sheriff, and make him pay the judgment creditor his costs of appearing on the sheriff's rule: In other cases, the costs of the proceedings are declared to be in the discretion of the court. The sheriff's right to poundage depends upon the event of the application, or suit; and if that be determined in favour of the execution creditor, the sheriff will of course be entitled to his poundage, but otherwise not": And as the sheriff, before the statute, was not entitled to the costs of applying to the court, for enlarging the time to make his return", so he is not entitled, under the statute, to the costs of the application c. But where a fieri facias having issued, goods were seized under it, and, an adverse claim being set up, the sheriff applied for relief under the above act, and the execution creditor did not appear to support his fieri facias; the court granted the costs of the adverse claimant's appearing to support his claim, to be paid by the execution creditor, but not those of the sheriffe: If the execution creditor, however, afterwards appear, and open the rule, the court will grant the sheriff the costs of his second appearance.

To give effect to the provisions of the above statute, it is thereby further enacted, that "all rules, orders, matters, and decisions, to be "made and done in pursuance of that act, except only the affidavits "to be filed, may, together with the declaration in the cause, (if any,) be entered of record, with a note in the margin, expressing "the true date of such entry, to the end that the same may be " evidence in future times, if required, and to secure and enforce

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a Gethin v. Wilks, 6 Leg. Obs. 237. per Taunton, J.

b Bowdler v. Smith, 1 Dowl. Rep. 417. 4 Leg. Obs. 187. S. C. Perkins v. Benton, 3 Tyr. Rep. 51. Towgood v. Morgan, id. 52. (a.)

Badcock v. Beauchamp, 3 Leg. Obs. 66. 8 Bing. 86. S. C. cited. Parker v. Booth, 1 Moore & S. 156. 8 Bing. 85.

S. C. Northcote (or Northcott) v. Beau

champ, 1 Moore & S. 158. 8 Bing. 86.

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f Append. to Chap. XLI. § 8, 9.

"the payment of costs directed by any such rule or order; and Force and effect every such rule or order, so entered, shall have the force and

"effect of a judgment, except only as to becoming a charge on any

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of rule or order.

costs.

lands, tenements, or hereditaments; and in case any costs Execution for "shall not be paid within fifteen days after notice of the taxation " and amount thereof given to the party ordered to pay the same, "his agent or attorney, execution may issue for the same, by fieri “facias, or capias ad satisfaciendum, adapted to the case, "together with the costs of such entry, and of the execution, if by

“fieri facias; and such writ and writs may bear teste on the day Teste of writs. Sheriffs' fees.

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of issuing the same, whether in term or vacation; and the sheriff,

or other officer, executing any such writ, shall be entitled to the

same fees, and no more, as upon any similar writ grounded upon a judgment of the court." c

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Of the ACTION of EJECTMENT.

THE action of ejectment, we have seen, is, in point of form, a What.
personal action of trespass; but, in effect, it is a mixed action, by
which a lessee for years, when ousted of his possession, may recover

stat, 3 & 4 W. IV. c. 27.

Not affected by uniformity of

his term, and damages. An ejectment being excepted out of the Excepted out of statute 3 & 4 W. IV. c. 27. § 36. b may still be brought, for the recovery of the possession of lands, &c.: And as it is not affected by the uniformity of process act, it may be commenced, as before that act, either by original writ, in the King's Bench or Common Pleas, or by bill in the King's Bench, or Exchequer of Pleas d.

Ante, 11. And for the nature of the action of ejectment, when and for what things it will lie, and for what not, and by and against whom it is brought, and the proceedings therein, see Tidd

Prac. 9 Ed. 1189, &c.

b Ante, 13.

2 W. IV. c. 39. d Ante, 62.

process act.

Within what

time it must be brought.

Alterations in.

Proceedings in, by landlord against tenant, on stat. 11 Geo.

IV. and I W.

IV. c. 70. § 36.

when tenancy expires, or right of entry accrues,

in or after Hilary or Trinity terms.

This action, being founded on a right of entry, must be brought, by the statute 21 Jac. 1. c. 16. § 1. within twenty years after the right of entry accrued a; or, in case of an adverse possession, it may be barred by that statute: And as it is an action relating to real property, it will be governed by the statute 3 & 4 W. IV. c. 27.b; by which it is enacted, that "after the 31st day of December 1833, "no person shall bring an action to recover any land, but within twenty years next after the time at which the right to bring such "action shall have first accrued, to some person through whom he "claims; or, if such right shall not have accrued to any person

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through whom he claims, then within twenty years next after the "time at which the right to bring such action shall have first ac"crued to the person bringing the same."

In this action, several important alterations have been made, during the present reign, which it may be proper to notice in this chapter, under the following heads: 1. The proceedings by landlord against tenant, when the tenancy expires, or right of entry accrues, in or after Hilary or Trinity terms: 2. The title and commencement of the declaration: 3. The service thereof: 4. The certificate of the judge who tried the cause, for an immediate writ of possession: 5. The mode of suing it out: and lastly, the recognizance of bail in error.

By the late act for the more effectual administration of justice, in England and Wales, reciting that whereas landlords, to whom a right of entry into or upon any lands or hereditaments may accrue, during or immediately after Hilary and Trinity terms respectively, were unable to prosecute ejectments against their tenants, so as to try the same at the assizes immediately ensuing, whereby much delay was occasioned in the recovery of the possession of lands and tenements, wrongfully withheld by tenants against their landlords; it is enacted, that "in all actions of eject"ment thereafter to be brought, in any of his majesty's courts at "Westminster, by any landlord against his tenant, or against any

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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 into or upon such lands or hereditaments shall accrue to such landlord, in or after Hilary or Trinity terms re

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a Ante, 19, 20.

b § 2. And for the time when the right shall be deemed to have first ac

crued, in different cases, see the above statute, $ 3, &c. Ante, 21, &c.

11 Geo. IV. & 1 W. IV. c. 70. § 36.

Service of de

claration, and

notice.

"spectively, it shall be lawful for the lessor of the plaintiff in any CHAP. XLV. "such action, at any time within ten days after such tenancy shall "expire, or right of entry accrue as aforesaid, to serve a declara“tion in ejectment, entitled 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 or tenants in possession to appear and plead thereto "within ten days, in the court in which such action may be brought;

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b

" and proceedings shall be had on such declaration, and rules to Proceedings "plead entered and given, in such and the same manner, as nearly giving rules to thereon, and as may be, as if such declaration had been duly served before the plead. "preceding term: Provided always, that no judgment shall be signed Judgment against casual"against the casual ejector, until default of appearance and plea ejector. "within such ten days; and that at least six clear days' notice of Notice of trial. "trial shall be given to the defendant, before the commission day "of the assizes at which such ejectment is intended to be tried: "Provided also, that any defendant in such action may, at any time Application by "before the trial thereof, apply to a judge of either of his majesty's superior courts at Westminster, 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 that it "shall be lawful for the judge, in his discretion, to make such order “in the said cause, as to him shall seem expedient." And that, "in Record, how made up. "making up the record of the proceedings on any such declaration "in ejectment, it shall be lawful to entitle such declaration specially, "of the day next after the day of the demise therein, whether such

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day shall be in term or vacation; and no judgment thereupon "shall be avoided or reversed, by reason only of such special "title." C

This statute applies only to issuable terms: and, under it, when a landlord's right of entry accrued on the day after the

2 Append. to Chap. XLV. § 1. and see Append. to 1 Sup. to Tidd Prac. 9 Ed. Part II. § 26.

Id. § 27.; and for the form of an affidavit of service of declaration and notice, on this statute, see Append. to Chap. XLV. § 3.

Stat. 11 Geo. IV. & 1 W. IV. c.

70. § 37. And for the mode of making
up the record on this statute, see Ap-
pend. to Chap. XLV. § 4. and Append.
to 1 Sup. to Tidd Prac. 9 Ed. Part II.
$ 28.

d Doe v. Roe, 2 Cromp. & J. 123. 1
Dowl. Rep. 304. S. C.

time to plead, &c.

defendant, for

Construction of decisions there

statute, and

on.

CHAP. XLV. essoin day of Trinity term, it was holden that he was not entitled to serve a declaration in ejectment as of that terma. And the statute does not, it seems, apply to cases where the ejectment is brought in Middlesex, for the recovery of premises situate in that county; but only where the cause is to be tried at the assizes. It is no ground, however, for setting aside a verdict for the plaintiff, that he did not give six clear days' notice of trial, as required by the statute; the defendant having appeared, and made his defence and it is no defence at nisi prius, that the declaration was irregularly served; as where it was served after the term, in a case not within the statuted.

Title, and commencement of declaration.

Recital of original writ unnecessary.

The mode of entitling declarations, in general, is settled by a late rule of all the courts; by which it is ordered, that “ every declaration shall be entitled in the proper court, and of the day of the month and year on which it is filed or delivered:" but it has been doubted, whether this part of the rule applies to declarations in ejectment: It is therefore usual to insert the term, at the head of the declaration in ejectment; though there can be no objection to add thereto, the day of the month and year on which it is served. It was formerly usual for the declaration in ejectment, by original, to repeat the whole of the original writ: But, by a late rule of all the courts, "the rules heretofore made, in the courts of King's Bench and Common Pleas i respectively, for avoiding long and unnecessary repetitions of the original writ in certain actions therein mentioned, shall be extended and applied, in the courts of King's Bench, Common Pleas, and Exchequer of Pleas, to all personal and mixed actions; and, in none of such actions, shall the original writ be repeated in the declaration, but only the nature of the action stated in manner following: viz. A. B. was

a Doe v. Roe, 1 Dowl. Rep. 79. 2 Leg. Obs. 367. S. C.

b Doe d. Norris v. Roe, I Dowl. Rep. 547. 5 Leg. Obs. 431. S. C. per Parke, J.

Doe d. Antrobus v. Jepson, 3 Barn. & Ad. 402.

d Doe d. Rankin v. Brindley, 1 Nev. & M. 1. 4 Barn. & Ad. 84. S. C.

eR. M. 3 W. IV. reg. 15. 9 Bing.

447. And as to the mode of entitling declarations, before stat. 2 W. IV. c. 39, see Tidd Prac. 9 Ed. 425, 6.

f Doe d. Haines v. Roe, 2 Moore & S. 619. and vide ante, 62.

& R. H. 2 W. IV. reg. 4, 8 Bing.

306.

h R. M. 1654. § 12. K. B.
i R. M. 1654. § 16. C. P.

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