In ejectment, attachment will not lie against the defendant who refuses at the trial, to confess lease, entry and ouster, but the costs will be taxed against him, and, if he refuse to pay on presentation of the bill, execution will issue. [See Dixson v. Cavenaugh, 1 Tenn. 365; and now, by the Code, the fictitious form is abolished, §§ 3229, et seq., and costs are regulated as in other cases, § 3197.]
Ejectment. — Judgment by default against the casual ejector. The defendants at the trial, refused to confess lease, entry, and ouster.; the plaintiff suffered a nonsuit, and a motion was made by Overton for an attachment, on account of a breach of the rule, and contempt for not confessing, c., agreeably to the practice in England.
Per Curiam.
No such process appears to have been used in this State; we are unwilling to make a precedent in a case, the effects of which must seriously affect the liberty of the citizen. Vide 3 T. Bl. 205 in notes; 1 Salk. 259. Let the clerk tax the coats, which the sheriff will present to the defendants for payment, and that the sheriff make return of their refusal to pay should such be the case. The sheriff presented the bill, which was refused, and returned to May, 1803.
The Court, upon motion as November, 1803, made an order that, unless the defendants pay the amount of the bill of costs within two months, execution issue against them.
Now, by Act 1801, c. 11, § 3, a defendant is made liable for costs as in other cases if he make default; or fail to confess lease, entry, and ouster. It would seem, however, if the trial take place, and the plaintiff fail to prove possession in the defendant, he must be cast. 7 Term 331; 1 Wils. 320.