At what time the declara be deli means of a judgment against the casual ejector, the court will compel him to make restitution of that part, for which the service was bad.a Formerly the declaration must have been delivered before the essoign day of the term in which the notice was given to tion must appear, otherwise the plaintiff could not have judgment till the next term; but now, by a general rule of all the courts, declarations in ejectment may be served before the "first day of any term; and thereupon the plaintiff shall be entitled to judgment against the casual ejector in like manner as upon declarations served before the essoign or first general return day." vered. b *899 davit. *SECTION IX. OF THE AFFIDAVIT OF SERVICE. WHEN the declaration has been served, an affidavit of the service must be made by the person who served it, or by a person who saw it served and heard it explained to the tenant in possession in order to obtain judgment against the casual ejector. But when the circumstances of the case are special the usual course is to move for a rule to show cause why the service should not be deemed good. This motion may be made even before the service, on an affidavit stating the circumstances that are likely to occur, and applying for a rule to show cause why service of such a nature should not be sufficient.d Requisites The affidavit may be sworn before a judge or a commisof the affi- sioner, and it is no objection that the commissioner is clerk to the attorney who makes the application. It may be made even before the attorney in the cause. It must be entitled in the cause and with the name of the casual ejector. The same particularity is not necessary in the title of an affidavit as in a declaration; it is sufficient to state the names of the lessors and not the frame of the demises. Therefore where the lessors of the plaintiff were described in the declaration as executors, it was held, that the affidavit might not notice their character in a Id. R. Gen. T. T. 1 W. IV, reg. 8. 2 B. & Ad. 789. 7 Bing. 784. 1 C. & J. 472. * Goodtitle d. Wanklen v. Badtitle, 2 B. & P. 120. Where an affidavit was jointly made by the person who served the declaration on the housekeeper of the tenant, and the housekeeper, stating that she had delivered it to the tenant, the court granted a rule nisi. Doe v. Roe, 2 Dowl. 198. Adams, 243. Methold v. Noright, 1 Bl. 290. Gulliver v. Wagstaff, id. 317. Doe d. Grant v. Roe, 1 W. W. & Dav. 68. 'Doe d. Cooper v. Roe. 2 Y. & Jer. 284. Anon. 2 Chitty, 181. (18 Eng. C. L. 295.) Doe d. Banks v. Roe, 1 Mur. & H. 3. b stating the name of the cause. An affidavit intituled "Doe, on the demise, &c.," instead of " demises," with the declaration annexed, was held good. But an affidavit intituled "Doe t. Roe," omitting the lessor's name, was held bad, though the declaration was annexed." must state *The title of the affidavit is sufficient if it contains the names *900 of all the lessors, without stating the demises with the same particularity as in the declaration. The affidavit must be What the clear and positive; unless when the service is executed under affidavit special circumstances it should state positively that the person served was the tenant in possession. An affidavit of service on A. B., tenant in possession, or his wife, has been held to be insufficient. It has been held, however, that an affidavit of service on a person whom the deponent believed to be the tenant in possession was sufficient. But an affidavit which stated that the deponent believed that the party served held the premises which were sought to be recovered under a lease and that she did not underlet them, was held to be insufficient. So was an affidavit that he served the person in possession." So, that he served the occupier. So was an affidavit that he served the wives of A. and B., who, or one of them, were tenants in possession. The affidavit must not qualify the pos- It should session of the tenants in possession, by stating the service to be state that on them as executors. The affidavit of service on an admi- of the denistratrix must state that she is tenant in possession, and that claration the property is leasehold, the presumption of law being that it was exis freehold.i In an affidavit in the case of a vacant possession, where one copy of the declaration was sworn to have been fixed on the premises, and another served on the lessee, but not on the premises, it is necessary to state that such lessee was tenant in possession at the time of such service. The affidavit must also state that the notice was read or explained." But if the tenant says he understands the nature and object of the service *it will be sufficient, without any statement of the reading or explanation. A rule nisi was granted, where it appeared a Doe d. Jenks v. Roe, 2 Dowl. 55. Doe d. Walters v. Roe, 1 W. W. & Dav. 75. • Id. Birbeck v. Hughes, Barnes, 173. the nature plained. *901 Doe d. Banks v. Roe, 1 Mur. & Hur. 3. 'Doe d. George v. Roe, 3 Dowl. 22; but see Doe v. Badtitle, 1 Chitty, 215, (18 Eng. C. L. 68,) contra. Doe d. Talbot v. Roe, 1 H. & W. 367. Doe d. Robinson v. Roe, 1 Ch. 1110. Doe d. Oldham v. Roe, 4 Dowl. 714. • Doe d. Jones r. Roe, 1 Dowl. 518. Doe d. Thompson v. Roe, 2 Chitty, 186. (18 Eng. C. L. 297.) Doe d. Quintin v. Roe, Adams, 244. Doe d. Stone v. Roe, 3 Hodges, 14. Doe d. Downes v. Roe, 1 H. & W. 671. from circumstances that the parties understood the contents of the declaration, though the affidavit did not state that it was explained to them. So where the declaration was put through an iron grating to the defendant, who was in Newgate.b So where the declaration was put on a tabie before the defendant, but could not be delivered to him, as the defendant's son prevented the person from serving it. Service on the wife on the premises, and reading over the notice without explaining it, has been held sufficient. Where the service was on the servant of the tenant, and the affidavit did not state that the nature of it was explained to her, a rule nisi only was granted in the first instance. A refusal by the party served to hear the reading or explanation, is equivalent to a performance of Affidavit that act. If the service be on the wife, the affidavit must state of service that it was on the premises or at the husband's house, or that on wife or the husband and wife were living together. If the service be on a servant or third person, the affidavit must state that the service was on the premises, and that the tenant had acknowledged the receipt of the declaration, or had been aware of the service before the first day of the term." servant. When no sion. Where no person is in the house, and the service is effected person is by fixing the declaration on the premises, the affidavit must in posses- state deponent's belief that the tenant had absconded to avoid the service; that the deponent had searched for the defendant *902 *had used due means to find him out, and could not find him; and that a copy was left as well as affixed on the premises.j An affidavit stating that the tenant had left the premises, but not stating that the lessor did not know where he was, was held to be insufficient.< Anon. 2 Chitty, 184. (18 Eng. C. L. 296.) Wright d. Bayley v. Wrong, 2 Chitty, 185. (18 Eng. C. L. 297.) Doe v. Roe, 2 Dowl. 199. Anon. 2 Chitty, 182. (18 Eng. C. L. 295.) Doe d. George v. Roe, 3 Dowl. 541. Doe d. Briggs v. Roe, 2 C. & J. 202. Doe d. Williams v. Roe, 2 Dowl. 89. Doe d. Morland v. Bayliss, 6 T. R. 765. Jenny d. Preston v. Cutts, 1 N. R. 308. ↳ Doe v. Roe, 1 D. & R. 563. (16 Eng. C. L. 57.) Doe d. Tindal v. Roe, 2 Chit. 180. (18 Eng. C. L. 293.) Roe d. Hambrook v. Doe, 14 East, 441. See Reg. Gen. T. T. 1 W. IV, ante, 898. Doe d. Lowe v. Roe, 1 Chitty, 505. (18 Eng. C. L. 148.) Doe d. Batson v. Roe, 2 id. 176. (18 Eng. C. L. 291.) Doe d. Tarluy v. Roe, I Ch. 505. (18 Eng. C. L. 149.) Anon. 2 Ch. 177. (18 Eng. C. L. 292.) Anon. 1 Ch. 505. (18 Eng. C. L. 148.) . SECTION X. JUDGMENT BY DEFAULT. If the tenant or landlord does not appear in due time pursu- When the ant to the notice affixed to the declaration, and enter into the plaintiff common rule to confess lease, entry, ouster and possession, the may move for judgplaintiff may, upon an affidavit of service, as previously alluded ment to, move for judgment against the casual ejector by default, against which, except when the service is made under special circum- the casual stances, is a motion of course, requiring only the signature of ejector. counsel.(1) The time for making this motion depends upon the locality of the premises, and the time when the notice requires the defendant to appear. In the King's Bench, if the premises are situated in London or Middlesex, and the notice requires the tenant to appear on the first day, or within the first four days of the next term, the motion for judgment against the casual ejector should regularly be made in the beginning of that term; and then the tenant must appear within four days, inclusive, after the motion, or the plaintiff will be entitled to judgment. If, however, the motion be deferred until the latter. end of the term, the court will order the tenant to appear in two or three days, and sometimes immediately, that the plaintiff may proceed to trial at the sittings after term; but if the motion be not made before the last four days of the term, the tenant need not appear until two days before the essoign day of the subsequent term. In the Common Pleas, if the premises are situated in London or Middlesex, and the tenant has notice to appear in the beginning of the term, judgment against the casual ejector *must be moved for within one week next after *903 the first day of every Michaelmas and Easter term, and within four days next after the first day of every Hilary and Trinity term; except, it seems, when the tenant has absconded, and the proceedings are upon the statute of 4 Geo. II, and then the motion may be made at any time during the term; because the rule of 32 Car. II, relates only to declarations in ejectment served upon tenants in possession." If one term is allowed to elapse between the service and the motion for judgment, a rule nisi only can be granted; for the party may have searched the office to see if judgment was obtained against him in the terrn after the notice, and finding it was not, he may suppose the proceedings were at an end.b * Adams, 248. Reg. Trin. 32 Car. II, C. B. Doe d. Lawford v. Roe, 1 Bing. N. C. 161. (27 Eng. C. L. 341.) Doe d. Wilson v. Roe, 4 Dowl. 124. __Doe d. Thring v. Roe, 3 Hodges, 13. And the rule is the same in the Exchequer. Reeve v. Roe, 1 Gale, 15. (1) (Where the tenant takes defence as to part, judgment should be taken against the casual ejector for the residue. Underwood ads. Jackson, 1 Wend. 95.) When When the premises are situated elsewhere than in London or Middlesex, or being situated in the latter places, the notice is to appear generally of the term, judgment must be moved for in all the courts during the term in which the notice is given to appear; and the appearance must be entered within four days next after the expiration of such term, whether it be an issuable term or not. But when the action is brought under the provisions of 1 W. IV, c. 70, s. 36, the tenant must in all cases enter his appearance within ten days after the delivery of the declaration. After the expiration of the rule for judgment, the plaintiff may sign judgment against the casual ejector, and immediately sue out a writ of possession, and execute it in term or vacation. But judgments against the casual ejector irregularly judgment obtained, will be set aside as a matter of course, and where against they have been regularly obtained, the courts will set them ejector aside; even after execution executed, upon an affidavit of merit will be set or other circumstances which they may deem sufficient."(1) the casual aside. a The court set aside a regular interlocutory judgment (signed *for want of appearance) and writ of possession executed, on an affidavit by the attorney, for the landlord and tenant, that he had received instructions for entering an appearance, but had neglected it, owing to matters personally affecting himself, which had prevented his attending to it. And an averment in the affidavit, that the deponent believed the parties to have a good defence to the action, was held to be sufficient without adding "on the merits." The court will, in some cases, in the exercise of their discretion, set aside a judgment against the casual ejector on terms, where the tenant has neglected to give notice to the landlord. But where judgment and execution in ejectment was regularly obtained without collusion with the tenants in possession, the court refused to set it aside at the instance of a party who stated that he was landlord of the premises, and had not received any notice of the declaration in ejectment. Yet in a more recent case, after a writ of possession executed, and an action for mesne profits commenced, the court set aside the judgment and execution on payment of all the costs incurred, at the instance of the landlord, who by the mistake of his wife had not had the copies of the declaration, Reg. Gen. 4 B. & A. 539. 2 B. & B. 705. But see Doe d. Greaves v. Roe, 4 Dowl. 88, where it was held that this practice applies to country causes only. с Tidd, N. Prac. 627. Adams, 252. Doe v. Hedges, 4 D. & R. Doe d. Shaw v. Roe, 13 Price, 260. Doe d. Troughton v. Roe, 4 Burr. 1996. 393. (16 Eng. C. L. 208.) e Id. Doe d. Grocers' Co. v. Roe, 5 Taunton, 205. (1 Eng. C. L. 78.) Doe d. Ingram v. Roe, 11 Price, 507. Doe d. Meyrick v. Roe, 2 C. & J. 682. Doe d. Martin v. Roe, 1 Hodges. 223. 1 Scott, 181. And see Goodtitle v. Badtitle, 4 Taunt. 820. (1) (Popino v. M'Allister, 4 Wash, C. C. Rep. 393.) |