SECT. 1. the tenant on the premises was held sufficient where it appeared CHAP. I. that the tenant was in America, and that his son managed his business. Where the service was effected at the house of the tenant in possession, by sticking a copy on the door of the house, and by serving another copy on a female there, who equivocated as to the tenant being at home, and, on the papers being explained, said she knew what they were, for that the lessor of the plaintiff had already been endeavouring to effect service, but could not; Tindal, C. J., observing, that he was inclined to think there was something like trickery, granted a rule nisi, which was afterwards made absolute on an affidavit that the same female was served with the rule in a yard attached to the tenant's house, and that she was his servant (r). Where the person effecting the service went to the house sought to be recovered, and, being informed that the tenant was at home, he put a ladder against the drawing-room window, and got up to it, and while there, believing that the tenant was in the room, he explained at the window the nature of the proceeding, and stuck a copy upon the door, it being sworn that the tenant was keeping out of the way to avoid being served, Coleridge, J., granted a rule nisi to be served personally, if possible, but if not, then in the same way as the copy of the declaration (s). So, where the clerk went to the tenant's house, knocked at the door, and received no answer, but heard some one whom he believed to be the tenant come to the door to listen, and he then read the declaration aloud, and explained it, and put a copy of it through a broken pane near the door, Patteson, J., granted a rule nisi (t). So, where several ineffectual attempts had been made to serve the tenant, who was denied by the servant, and the last time the servant stated that his master was in his house, but refused to be seen by any person, unless he sent in his name and message, whereupon the declaration was delivered to the servant, the court granted a rule nisi (u). And, in another case, where the servants refused to call their master or to receive the declaration, saying they had orders to take no papers, it was ordered (on motion) that leaving it at the house should be sufficient (x). So, where the tenant afterwards admitted that he was keeping out of the way to avoid being served, the court granted a rule nisi (y). But where the tenant's wife admitted that she had taken care to keep her husband out of the way, it was held that this admission of the wife could not be received against the husband, and the rule was refused (~). Merely stating the deponent's 9th ed. 1214: Doe Mather v. Roe, 5 Dowl. 552, and cases there cited: Doe Osbaldiston v. Roe, 1 1d. 456: Doe Morpeth v. Roe, 3 Id. 577: Doe Luff v. Roe, Id. 575. It may be generally stated, that wherever a bond fide attempt to effect regular service is frustrated by the fraud or artifice of the tenant, the court will grant a rule nisi. (See Doe Frith v. Roe, 3 Dowl. 569, and per Tindal, C. J., Doe Wright v. Roe, 6 Dowl. 455). Where the tenant went abroad, and resided there to avoid his creditors. and the declaration was delivered to a servant on the premises, who was left in charge of them, and another copy affixed on the outer door of the house, the Court of C. P. deemed it in sufficient. (Roe Fenwick v. Doe, 3 Moore, (r) Doe Wright v. Roe, 6 Dowl. 455. (8) Doe Colson v. Roe, 6 Dowl. 765: see Doe Mortlake v. Roe, 2 Dowl. 444: Doe Turncroft v. Roe, 1 H. & W. 371. (t) Doe Frost v. Roe, 3 Dowl. 314: Doe Wells v. Roe, 3 Dowl. 582. (u) Doe Herrey v. Roe, 2 Price, 112: (x) Douglass v. . 1 Str. 575. BOOK III. Service in case of Lunacy. Service in case of Bankruptcy. Service on Service on Service on belief that the tenant keeps out of the way to avoid service is not sufficient (a). It should be here observed, that where the premises are unoccupied, and the defendant has abandoned the possession, then the ejectment must be proceeded with as on a racant possession; but not so where the tenant has discontinued to occupy the premises, and still retains the virtual possession of them (b). Also, if the premises be incapable of occupation, as if they be in an unfinished state, the ejectment must, perhaps, be proceeded with as on a vacant possession (c). Service in case of Lunacy.] Where the tenant in possession was a lunatic, and the declaration was served on a person who resided with her, and transacted her business, (no committee being appointed), the court granted a rule to shew cause why this should not be deemed good service (d). But, where the service was on the daughter of a lunatic tenant in possession, who carried on the business for him on the premises, and it appeared that he was confined in a lunatic asylum, Patteson, J., refused a rule, observing, that the service might have been effected on the lunatic himself (e). Service in case of Bankruptcy.] Where the tenant in possession had become bankrupt, service of the declaration and notice addressed to the assignees upon a person who represented himself to be messenger in possession under the fiat, and on the official assignee, was held sufficient for a rule absolute (ƒ). Service on Parish.] In ejectment for a house rented by a parish for the purpose of harbouring some of the parish poor, service on the churchwardens and overseers has been deemed sufficient (g). But the overseers cannot be treated as jointtenants; and, in order to recover property in their possession, they must all be served (h). Service on Holders of Chapel.] In ejectments to recover possession of a chapel, the tenant in possession having quitted England, and not being likely to return, service having been effected on the clerk, who was intrusted with the keys, on the wife of the tenant, on his gardener, on a person claiming as mortgagee, and by affixing a copy on the notice-board, the court granted a rule absolute for judgment against the casual ejector (i). And in another case, service on the surviving lessees and the sextoness was held sufficient (j). And service on the trustees of a dissenting meeting-house and at the house is sufficient for a rule nisi, and service of that rule on the trustees for a rule absolute (k). Service on public Company, &c.] The service of the declaration (f) Doe Baring v. Koe, 6 Dowl. 456. (g) Tu, per v. Doe, Barnes, 181. (h) Doe Weeks v. Roe, 5 Dowl. 405. (i) Doe Dickens v. Roe, 7 Dowl. 121. (j) Doe Kirschner v. Roe, 7 Dowl. 97: and see Anon., T. 1839, B. C.; 3 Jurist, 460. (k) Doe Gray v. Roe, 7 Dowl. 700. SECT. 1. on the clerk of a public body (the clerk having been directed CHAP. I. to be appointed by act of parliament) has been held sufficient to obtain a rule nisi why it should not be good service (1). And public ComParke, J., in one case held that service on the bookkeeper of pany, &c. the Manchester Railway Company, on a part of the premises which he occupied, and where he slept, was sufficient for a rule absolute (m). And where the service was on the clerk of an incorporated company not empowered to sue or be sued in the name of their clerk, on part of the premises, though he did not reside there, Coleridge, J., granted a rule nisi (n). And where the service had been made on the clerk of the company, and also on the secretary of the Exchequer loan commissioners, who were mortgagees in possession, Littledale, J., granted a rule nisi, observing, that if the commissioners had no clerk, service on their secretary was sufficient (o). 4. Affidavit of Service. Affidavit of Service.] After serving the declaration and no- 4. Affidavit of tice, engross an affidavit of the service on plain paper, and let it Service. be sworn before a judge in town or a commissioner in the coun try (p). It may, it seems, be made before the attorney in the cause (g), if he be not the attorney actually on the record (r). It may be made either by the person who actually served the declaration, or by one who was present at the time of the service (s). Where the ejectment is on several demises, the affidavit must be intitled "Doe, on the several demises of A., B., C., [naming all], v. Roe "(t). But by mistake inverting the order of the lessors is of no consequence (u). Though the declaration describes the lessors in a particular character, as executors, assignees, &c., they need not be so described in the title of the affidavit (x); and where the declaration contains both joint and several demises, an affidavit intitled in the names of all the lessors severally is sufficient (y). It should not be intitled in the names of the real defendants (z). It must appear from the affidavit, that the declaration has been served on the "tenant in possession:" merely stating a service on the "person" in possession, or upon a person whom deponent believes to be tenant in possession, would be insufficient (a); stating that it was served on the tenant "as executor," would not suffice (b); nor would an affidavit that the service was on a tenant in "legal" possession (c); nor on the "occupier," the words " tenant in possession" being in ordinary cases indispensable (d). But where the premises were used as a gambling-house, and it was impossible to gain access or information, a rule nisi was granted on an affidavit (1) Anon., 2 Chit. 181. (m) Doe v. Roe, 1 Dowl. 23. (n) Doe Ross v. Roe, 5 Dowl. 147. (6) Doe Marquis of Anglesey v. Roe, M. 1838, 3 Jurist, 10. (p) See the forms, Chit Forms, 362. (4) Doe Cooper v. Roe, 2 Y. & J. 284. (r) See R. H., 2 W. 4, r. 6, post: Doe Grant v. Roe, 5 Dowl. 409. (8) Goodtitle v. Badtitle, 2 B. & P. 120. (t) Doe Cousins v. Roe, 4 M. & W. 68; 7 Dowl. 53, S. C. (u) Doe v. Butcher, 2 Chit. 174. ) Doe Barles v. Roe, 5 Dowl. 447. (3) Anon., 2 Chit. Rep. 181. (a) Tidd, 1245: Doe v. Roe, 1 Chit. Rep. 574: Doe v. Badtitle, 1 Chit. Rep. (b) Doe v. Roe, 2 C. & J. 45; 1 Dowl. (See (c) Doe Osbaldiston v. Roe, 30th April, 1832, Q. B. (d) Doe Jackson v. Roe, 4 Dowl. 609 and see Doe Jones v. Roe, 5 Dowl. 226. Form of, &c. PART 1. BOOK III. which stated service on the tenant in possession, as deponent believes (e). The affidavit must also be certain and positive: an affidavit of service on J. S. his tenant, or C. his wife, was holden bad (f): so was an affidavit of service on the wives of A. and B., "who, or one of them, are tenants" (g); so was an affidavit of the service "on a woman on the premises, who represented herself to be the wife of the tenant in possession,” without adding, that the deponent believed her to be his wife (h). So an affidavit, stating deponent to have "personally served J. T., W. E., J. E., and C. T., the four tenants in possession, with true copies of the declaration," is not sufficient, but each should be sworn to have been personally served (i). But an affidavit of service on the wife, as she informed deponent, and as he verily believes," has been deemed sufficient (j). An affidavit of service on the wife of the tenant, which does not shew that it was made on the premises, must shew that she was living with her husband (k). But an affidavit of service on her "near the premises" has been held sufficient to obtain a rule nisi (1). It must appear from the affidavit, that the notice was read over or explained to the party on whom it was served, or that he understood its import or contents (m). If the affidavit states that the tenant has since acknowledged that he understood the meaning and intention of the service, it will suffice, without any statement of the reading or explanation (n). Where the service is made upon a servant or other third person, the affidavit must shew that the tenant (o) has acknowledged that he has received the declaration, or that he has known of the service thereof, previous to the first day of the term (p): the affidavit must shew when such acknowledgment was made (q). Even a rule nisi will not be granted, unless the affidavit shew some probable grounds for believing that the tenant has received the declaration before the term (r), or that the servant has authority to receive letters and papers for the tenant (s). An acknowledgment within the term is sufficient, if it appear that declaration was received before the term (t). If no one be in the house or premises, and the declaration is stuck up thereon, the affidavit must state the deponent's belief that the tenant absconded to avoid the service (u); it must also state that a copy of the declaration was left, as well as affixed on the premises, and that the deponent, or others, had used diligent means to discover the tenant's residence, which is still unknown (x); it is not sufficient to state that the lessor of (e) Doe George v. Roe, 3 Dowl. 22: see (f) Birbeck v. Hughes, Barnes, 173. (i) Doe Levi v. Roe, 7 Dowl. 102. (k) Doe Briggs v. Roe, 1 Dowl. 312; 2 (1) Doe Marquis of Bath v. Roe, 7 Dowl. 692. (m) See ante, 737: Doe v. Roe, 1 Dowl, 428: Doe Jones v. Roe, Id. 518. (n) Doe Thompson v. Roe, 2 Chit. Rep. 186: Anon, Id. 184: Doe Quintin v. Roe, Ad. Eject. 215. (0) An acknowledgment by his wife will not do (ante, 739). (p) Doe Wilson v. Roe, Ad. Eject. 209: Doe Tindale v. Roe, 2 Chit. Rep. 180: Doe Martin v. Roe, 1 H. & W. 46: ante, 739. (q) Anom., 2 Chit. Rep. 187. (r) Doe Read v. Roe, 5 Dowl. 85. (8) Doe Read v. Roe, 1 M. & W. 633. (t) Ante, 739. Therefore, quære, why necessary to state the time of acknowledgment? (u) Doe Lowe v. Roe, 1 Chit. Rep. 505, n.; 2 Chit. Rep. 177; Harrison, L. & T. 833: see ante, 740 (x) Doe Tarluy v. Roe, 1 Chit. Rep. 506, 505 n.: Anon., 2 Chit. 177: ante, 740, 741. SECT. 1. the plaintiff had been unsuccessful in two attempts to find the CHAP. 1. defendant at his dwelling-house, and had therefore stuck up the declaration on the premises (y). Where there Tenants in When several tenants had been served with copies of the are several same declaration, if it is meant but as one ejectment, and to Possession. be followed by one judgment, one affidavit of the service of all is sufficient, annexed to the copy of one declaration, if all the copies are alike, or to several copies if all are not alike: if the ejectments are made several, so as to have several judgments, writs of possession, &c., then an affidavit of the service must be annexed to separate copies of the declaration (2). Supplemental Where the service is good, but the affidavit defective, the Affidavit. defect may, in general, be remedied by a supplemental affidavit (a). 5. Judgment against the casual Ejector. The Motion and Rule for.] If the tenant, upon whom the 5. Judgment declaration and notice were served, does not take steps to have against the casual Ejechimself made a party to the action, (that is, unless he, in due tor. time, enter into the common consent-rule to confess lease, The Motion entry, ouster, and possession), the plaintiff becomes entitled and Rule for. to judgment by default against the casual ejector. The motion When made. for this judgment should be made some time in the term in which the tenant was required by the notice to appear (b); in town causes it is usually made at the beginning of the term; in country causes, usually at the latter end of it (c). In a town cause, it is in the Queen's Bench and Exchequer requisite that this motion should be made in the term, and if not applied for till a subsequent term, it will be refused, and a fresh ejectment would have to be served (d). In country causes, in all the courts, and in town causes in the Common Pleas (e), it may be made in the subsequent term; and, in the Queen's Bench, the rule is absolute in the first instance (f); but in the Common Pleas and Exchequer a rule nisi only will be granted if the motion be not made till the subsequent term (g). The motion cannot, either in town or country causes, be made after the expiration of two terms after the service of the declaration (h). If the ejectment be by a landlord, under the provisions of the 11 G. 4 & 1 W. 4, c. 70, s. 36, see the directions, post, 783. As to the time in which the tenant or landlord must appear and plead, see post, 749. In order to move for judgment against the casual ejector, Practical Dianner the above-mentioned affidavit of service to the declaration, rections as to and indorse on them" To move for judgment against the casual and Rule. Harrison, L. & T. 833. (z) 2 Sell. Pract. 178. (a) 2 Sellon, 99: Tidd, 1216. (b) Fenwick's Case, I Salk. 275; 2 Ken. 272: R. T., 18 C. 2 (a): R. E., 2 G. 4: 4 B. & Ald. 539. By the recent rule of H. T. 1838, of the Court of C. P., it is ordered, "that on and after the first day of next Easter term, every motion for judgment against the casual ejector in ejectment, in London and Middlesex, may be made on any day during the term." (e) See the rule at end of note (b), supra: R. T., 32 Car. 2: Doe Lawford v. Roe, (d) Doe Greaves v. Roe, 4 Dowl. 88, per (e) Doe Wilson v. Roe, 4 Dowl. 124. (f) Doe Croome v. Roe, 6 Dowl. 270: Doe v. Roe, 2 Dowl. 196: Doe Wiggs v. Roe, 5 Dowl. 662. (g) Doe Reeve v. Roe, 1 Gale, 15: Right d. Jeffery v. Wrong, 2 Dowl. 348, Exch.: Doe Wilson v. Roe, 4 Dowl. 124, C. P. (h) Doe v. Roe, 1 Dowl. 495; 2 Id. 196. Motion |