Berrington at the demise OF dorm versus Parkhurst fortescue and other motion  to strike out a defendant in ejectment he be a material witness refuse Tri at  Ni Pri to SC S p the case as to other point appear in several book videlicet  Str and Kel Barnard Doug in ejectment the party be at issue and the cause be  to be try at the bar tomorrow and yesterday it be move on the part of the  defendant that Edgerle one of the defendant may be strike out from be a  defendant upon a affidavit of the say Edgerle that he be only steward to sir  John fortescue one of the defendant and not a tenant nor claim any interest in  the premise and a affidavit of the other defendant that he be a material  witness to support the motion they cite a Anonymous case I side where after  declaration deliver and before plea he who have title move to change the  plaintiff and the court agree he shall pay cost and there be a note of the  reporter the plaintiff may be change for the same reason that the defendant  may they cite also side in trespass against several defendant one of the  plaintiff witness be by mistake make a defendant and on motion he be strike  out and now at show cause plaintiff counsel produce a affidavit that the say  Edgerle be at the time of serve the ejectment a tenant in possession of a  message part of the premise in demand and they cite a case of James and ken  hill geo two where upon a motion that ken the tenant in possession may be  strike out and the landlord add a defendant the court say you may add the  landlord if you will but you can strike out the defendant it will be of  dangerous consequence it never be nor can be do case tempt Hardwicke in reply  defendant counsel cite lev bearcroft with the hundred of Burnham where the  declaration be amend in a very material part even after the jury be come to  the bar they cite also a case of Lord Montague and sir Geo Maxwell Pasc geo I  a motion that the fictitious defendant may be strike out and make a witness on  a affidavit that he have no interest and it be a issue direct from the court  of chancery they be direct to move the Lord chancellor I side Stephens and  Gerrard be also cite where upon a trial in order to take off a witness be  evidence they show he be tenant in possession and therefore liable for the  mesne profit and yet the court allow he to be a witness Lord Hardwicke c j the  question be whether we can leave one of the defendant out of the record and  jury process at the instance of the defendant for we must take this  application to be not at the instance of Edgerle but of the other defendant  because they swear that he be a material witness for they now the case that  have be cite to support this application do not come up to it as to the case  in levinz it be not a case of this kind for it be only as to make a amendment  which be always at the court be discretion and not a alteration of party and  the reason of amend in that case be because otherwise the plaintiff must have  entire lose his action the case in side do not come up to this case neither  for there it be a application on the behalf of the plaintiff and before plea  plead to alter case tempt Hardwicke er p a plaintiff who be always a  fictitious person and be not therefore material to the defendant the lessor of  the plaintiff be answerable for cost but the landlord and the tenant of the  land be real defendant one for his possession and the other for his title and  the meaning of the remark at the end of the case be that the nominal defendant  videlicet the casual ejector may be change as well as the nominal plaintiff as  to side that be a action of trespass where no possession be to be recover but  only damage and the application there too be in behalf of the plaintiff who  have a power to enter a nolle attendance as to any of the defendant so that  the court only grant that uponmotion which the plaintiff be entitle to have do  himself in another way and there be a case which I have from the information  of Lord Raymond a information be exhibit at the suit of the crown against  several defendant and Trevor attorneygeneral will have examine one of the  defendant as a witness against the other defendant but the defendant will not  suffer it to be do because the crown be preclude in have make they all  defendant and thereupon the attorneygeneral enter a nolle attendance at the  bar and be then suffer to examine he case tempt Hardwicke the reason for our  do this because otherwise the defendant will be prejudice in want a material  witness but that prove too much because in most case of ejectment the tenant  in possession be material witness for their landlord it be say also that here  the defendant Edgerle be not a tenant in possession but a servant only of one  of the defendant but how do that appear to we since there be no complaint that  the ejectment be ill served  and service of a ejectment on a servant be not  good service as be solemnly determine douglas case Michaelmas Geo l there the  servant be serve on the waster abscond and the court think that not sufficient  to find the common rule upon though indeed upon the affidavit of that abscond  of the master they do make a rule that leave the declaration with the servant  shall be good service of the master therefore if in our case the say Edgerle  be only a servant and not a tenant the proper method will have be to move to  set aside the rule as to he beside the defendant fortescue who servant he be  say to be have join himself a defendant as be his landlord which be a  admission that he be tenant in possession and if we can make a new precedent  for this case it ought to be on the clear ground possible whereas Edgerle only  swear be be not a tenant and do not swear he be not tenant in possession and  he allow he be a servant of sir John fortescue and life in his house with his  family and if that be so who else can the plaintiff serve his ejectment on for  such a case differ from service on a servant live in the same house with and  under his master even suppose this to be the case and they come to set aside  the rule for want of service on the tenant in possession I shall have think  this sufficient service because be can appear to the plaintiff to be so beside  they do not show that any one else be tenant in possession so I think the rule  must be discharge page I I do not know any case where the defendant at his own  motion can abridge plaintiff action the case in side be to the contrary for if  this court can have do it they will not have send he back into chancery I do  not remember but that every motion by the defendant to strike out the  defendant and put the landlord in his room have be refuse but the court will  at the defendant request take in the landlord to be a defendant probin I the  plaintiff may enter a nolle attendance as I apprehend even without the leave  of the court if the court shall strike out the defendant in this case not only  the record must be alter but all the subpnas of witness and the jury process  so that if the case tempt Hardwicke juror or witness shall not appear upon the  process already go out they will not be punish be summon in a different cause  from what will be on record lee I the only ground this can be put upon be that  this defendant Edgerle be irregular serve be a servant only and not a tenant  in possession now we have not before we the rule for judgement against the  casual ejector and therefore we must take it for grant that there be a good  affidavit of his be tenant in possession and if the fact be real otherwise the  affidavit be false but here beside that express affidavit he be admit to be  tenant in possession the ouster be confess therefore I do not see how we can  go into this enquiry upon this affidavit I do not case tempt Hardwicke er p  see how the court can strike out a defendant in case of ejectment any more  than in any other case and I do not know any case where it can be do without  plaintiff consent for plaintiff may always proceed at the peril of cost rule  discharge