
    SWEETMAN’S LESSEE vs. WILBURN AND WARMACK.
    NASHVILLE,
    Nov. 1802.
    Practice in Ejectment.
    Ejectment.—Judgment by default against the casual ejector. The defendants at the trial, refused to confess lease, entry & ouster, the plaintiff suffered a non suit, 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 costs, 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, & returned to May 1803.

The court upon motion at November, 1803, made an order, that unless the defendant’s pay the amount of the bill of costs within two months, that execution issue against them. 
      
       Now, by act 1801 C 11. S. 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. T. R. 331. 1 Wils. 220.
     