Jackson ex dem. Sager v. Stiles

Curia. The affidavit is sufficient to establish the relation of landlords and tenant between the Livingstons and Burton. This is not a fact peculiarly within the knowledge of the landlord, like those cases in which we require the oath of the party, or an excuse for the affidavit of a third person. It is susceptible of proof, like any other fact, and is fully shewn in this case. But the application of the landlords, for admission to defend alone, cannot be granted. To entitle them to do this, it must first be shewn, by affidavit, that the tenant refuses, or has neglected to appear. This is not done. Our statute,(b) on this subject, is the same as that of 11 Geo. 2. c. 19, s. 13; and the practice under both statutes is the same.(c) Where the landlord defends alone, judgment is entered of course, asrainst the casual elector. Unless this is done, the ° J . plaintiff cannot have the effect of his judgment, which goes against a man out of possession, (d) The notice is sufficiently broad,(1) to receive the landlords as de- [136] fendants, jointly with the tenant, and we’ direct a rui* i accordingly. Motion granted, (2) Footnotes [(c)] 4 John.-49|jg' Bam. 179. 2 Sell, pr, iQ2 [(d)] "1 ******8jg Run. 403. 4 John. 496. [(1)] The notice was of a motion for a rule, that’ the landlord be made a-defendant instead of Stiles, or for such other rule or order as the Court should direct upon the premises. This, for more abundant caution, should be inserted in every notice of motion, where the nature of the relief to be-granted is, in the least, doubtful. It answers the same end, in a notice, as a prayer of general relief in a bill in Chancery ; for, although the specified: rule sought may be refused, yet another may tiren be granted, adapted to the case made upon the affidavits, on both sides; whereas, if the notice stop, with seeking a particular rule, it is doubtful whether any other canbe made, if objected to for the narrowness of the notice. Indeed, in Alexander v. Esten, (1 Caines' Rep. 152,) the Court refused relief, beyond such [136] a no^ce" These motions are many times similar to a bill in Equity, not. or“ty ™ *he uncertainty hs td what relief will he finally granted, but in the very subject of relief itself. For the high value which is set upon this genera* Prayel" °f equitable relief, vid. Coop. Treat. Pl. Eq. 13. Grimes v. French, 2 Atk. 141. And in Cook v. Martin, 2 Atk. 3, Ld. Hardwicke said, “ Praying general relief is sufficient, though the plaintiff should not he .more explicit in the prayer of the bill; and Mr. Robins, a Very eminent cotmseb use|l to say, general relief was the best prayer, next to the Lord’s prayer.” Mr. Dunlap, in his Pr. p. 319, has the clause thus : “ For such other or ^ul ^ler order, as the Court may think meet to grant in the premises.” [(2)] Where the tenant lies still, and suffers judgment to be signed against him, this shall be deemed a neglect to defend ; and the landlord, on shewing this, may be let in. (Per Kent, Ch. J. in Jackson v. Stiles, 4 John. Rep. 495.nd vid. Troughton v. Roe, Burr. 1996.) But the landlord may be made defendant alone, before judgment, on an affidavit that the tenant had refused to'appear. (Barn. 179.) It is then made a part of the rule, that the plaintiff may sign judgment against the casual ejector, hut that the writ of hah. fac. pass, be staid till farther order. This was done in Roe v. Doe, (Barn.. 179, and vid. 1 R. L. 443, s. 30. 11 John. 436.) Indeed, it is advisable to ascertain whether the tenant will appear ; and, if he refuses, to make the-motion before judgment; because, after judgment, it is a matter of discretion to admit the landlord or not. (Adams, 239. Dobbs v. Passer, Sir. 975.) When the rule is to appear with the tenant, it is in the alternative, that the landlord he made defendant with the tenant, if he shall appear, and if not, that he may appear alone, and enter into the consent rule, and that the plaintiff sign judgment against the casual ejector, and that execution stay, &c. (Vid. the form of this rule, in Tidd’s Appendix by Mr. Caines. 474-5. Adams' Eject. App. No. 29.)