Jackson ex dem. Runno v. Stiles — 1 Cow. 166

Majority

p. 166

Jackson, ex dem. Runno et al. against Stiles, De Hart, tenant.

Headnote

wheretiiTles’ sor neglects or in the5consent rule, the court will, on motion, order, that the lessor pay the costs of the motion, and join in the consent rule, within 20 days after service of the rule; or may^enter^a mi pros ^and, nonprossed, ° the lessor pay the costs of the defence.

Ejectment. Mr. Theodore Spencer, the attorney for the tenant, stated, in his affidavit, that the notice subjoined to the declaration in this cause, required De Hart to appear at the Capitol, in the city of Albany, on the first Monday ofi January, last past; and, by rule of this Court, to cause himself to be made defendant, in the place of John Stiles. To this was annexed an admission of Mr. Kellogg, the plaintiff’s attorney, of due service upon him, of consent rules, plea, and notice of bail, which Mr. Spencer, in his affidavit, stated to have been signed by him; and that, at the same time, he serve¿ on Mr. Kellogg a notice of being retained by the tenant; and that Mr. K. had not joined in the consent rule, on the 23d July last, the time of the jurat to. his affidavit.. Qn jqjg affidavit, 7

J. Plait,

moved for a rule, that the lessors of the plaintiff join in the consent rule in this cause, in 20 days after service of the rule on the plaintiff’s attorney; or, that in default thereof, the proceedings, on the part of the plaintiff, be forever stayed; and that the lessors of the plaintiff pay to the tenant the costs of this motion, and the costs of defending this cause, or for such other relief as the Court should see fit to grant, on the above affidavit.

Kellogg, contra.

The English rule is the rule of this Court. In Goodright, ex dem. Ward, v. Badtitle, (2 Bl. Rep. 763) on a motion to set aside the rule to reply, the landlord had entered into the common rule, but the lessor had neglected to do this. The Court of C. B. said, “ the plaintiff could not be forced to proceed against a person whom he never had accepted as defendant; that the rule was regular, and the nominal plaintiff ought to be non prossed ; but, being nominal, the defendant could have no costs; and the motion was denied. He also cited Runn. on Eject. 187, 202-3. 2 Sellon, 110.^[1] Adams on Ej. 244-5.

By the English practice, the tenant may rule the nominal plaintiff to reply to his plea, where the lessor has refused to join in the consent rule; and so non pros him. But the tenant there gets no costs. We are happy to find that a different, and more reasonable practice has long prevailed in this Court.^[1] The lessors must pay the costs of this application and join in the consent rule within twenty days after service of a copy of the rule ; in default whereof, the tenant may enter judgment of non pros. On being non pressed, the lessors must pay him the costs of his defence.

The Court, accordingly, directed the following rule to be entered:

John Stiles, Cornelius Be Hart, tenant,'J ^ August

James Jackson, ex dem. John A. Run- )* 1823.

no, Phebe Runno, Ebenezer Ramsay, I m o a

m o a and Francis Kelly. ) T‘ S?enCCr’ Att

On reading and filing affidavits, and notice of motion; and on argument of Mr. Platt for the tenant, and Mr. Kellogg for the plaintiff—Ordered, That the lessors of the plaintiff pay to the tenant the costs of this application, within twenty days after service of a copy of this rule on them respectively: And that the lessors of the plaintiff enter into the consent rule, within twenty days after a service of a copy of this rale on the attorney of the plaintiff; and that, on default to enter into such consent rule, judgment of non pros be entered ; and that the said lessors of the plaintiff, upon such nonpros being entered, pay to the tenant the costs, on the part of the defendant, to be taxed.

(b) (b) Two years afterwards, the English C. B. manifested some dissatisfaction with the rule in Goodright, ex dem. Ward, v. Badtitle ; and where the lessor had brought two ejectments, in which he had refused to join in the consent rule, and now had brought a third; on a rule to shew cause why all the plaintiff’s proceedings should not stay, till the costs of the two first were paid, the Court said, “whatever foundation there might be for practice» which exempted a lessor from costs for not joining in the consent rule, ye(, when the Court sees manifest vexation and oppression, as in the present case, it will exercise its jurisdiction over this fictitious proceeding, to prevent itand they made the rule absolute., (Ginger v. Barnardiston, 2 Bl. Rep. 904.)