case smith against jones error in the exchequerchamber will not lie upon a  judgement in ejectment against the casual ejector the practice of the court of  king bench be for the plaintiff in ejectment to deliver a copy of the  declaration to the tenant in possession or to his wife with a endorsement in  English of the substance of such declaration c and if the tenant do not appear  in the beginning of the next term then upon affidavit make of the delivery of  the copy of the declaration affix to such affidavit and of read the  endorsement or of acquaint the tenant with the content thereof the court will  make a rule modern report er p for the tenant to appear and plead on a certain  day at which time if he appear he must by his attorney file common bail and  enter into a rule to confess lease entry and ouster and leave it at a judge  chamber and give notice thereof to the attorney for the plaintiff that he may  proceed but if the tenant in possession do not appear then after the day  appoint by the court for his appearance and to plead judgement by default  shall be enter against the casual ejector in this case a declaration in  ejectment be deliver and a rule make for the tenant in possession to appear  and plead which he do c quare whether he plead not guilty and then withdraw  his plea or whether the plaintiff attorney make up the paperbook with not  guilty and when he come to deliver it to the defendant attorney he refuse to  plead not guilty and strike it out of the paperbook and give a cognovit act  with judgement against the tenant in possession at the same time give notice  of a writ of error bring in the name of the tenant in possession note to the  former edition a and afterward withdraw his plea and confess judgement which  the plaintiff enter against the casual ejector and now the tenant in  possession move by his counsel to set aside this judgement the reason be  because he may bring a writ of error for no such writ will lie on a judgement  against the casual ejector therefore the judgement ought to be enter against  the tenant himself for wherever the defendant be in court the judgement must  be enter against he and not against the casual ejector now here he be in court  for he appear and plead to issue and may come in at any time and confess lease  entry and ouster c and if the judgement have be enter against the tenant it  have be better for the plaintiff than to have it enter against the casual  ejector because in such case the plaintiff will have his cost and will be  entitle to a action to recover the value of the modern report mesne profit in  damage which he can never recover by a judgement against the casual ejector  the court inquire of the master of the office what be the practice of the  court in such case and both he and several old practitioner affirm that the  practice be to enter judgement against the casual ejector and that he have  often deny to sign judgement against the tenant in possession unless he have  plead it be true he plead in this case but afterward be withdraw his plea and  though he have plead yet he be not a defendant until he enter into a rule to  confess lease entry and ouster for then and not before he be a complete  defendant and may plead to issue but whether he appear or not yet judgement  shall be enter against the casual ejector it be true it be sometime enter  against the tenant in possession but that be by consent of the party and upon  a promise not to bring a writ of error the chief justice be of opinion that  there be no instance of a judgement be take against the tenant in possession  for want of a plea that word of the rule be positive certain that judgement  shall be enter against the casual ejector he be doubtful in this point it be  the right of the subject to give judgement by confession it be likewise his  right to bring a writ of error upon such judgement of which right be can be  deprive by a rule of this court or by any other court whatsoever now the  intent of the rule for the tenant in possession to appear on a certain day and  plead be only to bring he into court that when be come in he may confess lease  entry and ouster but not to strip he of that right to which he be entitle by  law as it will if this judgement shall stand against the casual ejector  because no writ of error will lie in the exchequerchamber upon such judgement  this way of deliver a ejectment be in nature of process to compel the tenant  to appear in court and be first institute in the Lord chief justice roll time  and never question until now there be a difference between appear and plead  and appear and not plead at all Eyre justice be clear for the plaintiff that  judgement shall be enter against the casual ejector but the other three be  doubtful so it be adjourn modern report er p