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on error to the circuit court of the district of Tennessee, where such an amendinent was allowed ; and Chief Justice Marshall, in delivering the opinion of the court, said: “In an ejectment the lease is entirely a fiction, invented for the purpose of going fairly to trial on the title. Courts have expressed a full discretion in allowing it to be amended. A plaintiff has frequently been allowed to enlarge the term where it has expired before a final decision of the cause. Between making the term extend to a more distant day, and commence at a later day, the court can perceive no difference in substance. They are modifications of the same power, intended to effect the same object; and although not precisely the same in form, the one is not greater in degree than the other. The amendment, therefore, was properly allowed.” (Blackwell v. Patton, 7 Cranch’s R. 471, 480.) But in later cases, in the same court, it has been held, that in ejectment an amendment, so as to enlarge the term laid in the declaration, will be permitted in the discretion of the court; and that a writ of error will not lie in a case where the court below has denied a motion for this purpose. (Walden v. Craig, 9. Wheaton's R. 576. Chirac v. Reinicker, 11 ib. 280. Wright v. Hollingsworth, 1 Peter's R. 168.' Pickett's Heirs v. Legerwood, 7 ib. 144.) But the permission to the plaintiff to amend his declaration in ejectment will not be extended to the injury of the defendant; and therefore the English court of king's bench wonld not suffer the demise to be altered to a day subsequent to the day of the delivery of the declaration, on the ground that this would be to give the lessor of the plaintiff a right of action which did not subsist at the time of the commencement of the action. (Doe v. Jeffries, cited in Adams on Eject. 227, note a.) The same doctrine was held in the state of Kentucky, although it was declared by the court that if the amendment of the declaration, laying a demise after the commencement of the action, was not opposed by the defendant, the judgment will not be reversed in the court of appeals. (Cox v. Lacy, 3 Litt. R. 334.)
An amendment of the declaration in ejectment has been allowed by the insertion of a local description of the premises, where all local description had been previously omitted. (Doe v. Bath, 2 Nev, & Man. R. 440. And Doe v. Dyeball, 1 Mood. & Rob. R. 330. Same Case, 8 Barn. & Cres. R. 70.) And the English courts, as well as the American, have often allowed the enlargement of the term after it has expired, after the cause has gone down for trial, and even after the judgment has been affirmed. (Roe j. Ellis, Black. R. 940. Vicars v. Heydon, Comp. R. 841.) Such permission, however, has been refused where a large number of years had elapsed, in one case fifty years, and in another twenty years, since the date of the original judgment. (Bradney v. Harper, 1 Barn. & Cres. R. 121. Doe v. Tuckett, 2 Barn. & Ald.
The plaintiff will not be permitted to amend his declaration by inserting a demise from a person who has no claim nor any subsisting title to the premises in question. (Jackson v. Richmond, 4 Johns. R. 483.) Neither will the court allow an amendment of the declaration in ejectment, by adding a new demise, where the proposed lessor's title is barred by the statute. (Jackson v. Munray, 1 Cow. R. 156.)
A mistake in the declaration in ejectment, by naming the tenant in possession as the defendant instead of Richard Roe, is not so material but that the court will grant a rule nisi for judgment against the casual ejector. (Doe v. Roe, 9 Dowl. P. C. 363.) And where the name of the tenant in possession was inserted at the commencement of a declaration by mistake, instead of that of the casual ejector (the proceedings in other respects being regular), the court of king's bench granted the rule for judgment upon the common affidavit of service, and suggested that, if the tenant did not appear, an application should be made to amend. (Doe v. Roe, 1 Chitty's R. 573, note. Anonymous, 2 ib. 173.)
If the term expires before the trial, the plaintiff has sometimes been permitted to proceed for his damages and costs, though not for the recovery of his land. This was permitted when the old principles of the action prevailed, and the same rule has been sometimes applied in the modern practice by which the action of ejectment is regulated. (Cassel v. Saltonstall, 3 Mod. R. 249. Lessee of Brown v. Galloway, 1 Peter's Circuit Court R. 291, 299. Lessee of Rugan v. Phillips, 4 Yeates' R. 382. Murray v. Garretson, 4 Serg. & Rawle's R. 130..
OF THE NOTICE TO APPEAR IN THE MODERN ACTION OF EJECTMENT
THE REQUISITES OF THE NOTICE - THE AMENDMENT THEREOF.
The practice requires that a declaration in ejectment be accompanied, in all cases, with a notice requiring the defendant to appear and plead to the action. Sometimes the notice is expressly required by statute, with a specific direction in respect to its contents. Where this is the case, the statute should be consulted, and the notice made out in the terms specifically directed. But where no statute exists upon the subject, the practice is quite well settled by the rules and decisions of the courts. The notice is usually placed at the foot of the declaration, and the name of the tenant affixed to it; and, where the possession of the disputed premises is divided among several, it is usual to prefix the names of all the tenants to each declaration. Indeed, it has been held, that, where joint-tenants are in possession, the names of all must be prefixed; and that, if the notice to appear be addressed to one only of the joint-tenants, it is irregular, and will not entitle the lessor of the plaintiff to move for judgment against the casual ejector. (Doe v. Roe, 10 Moore's R. 493.) Although, where the notice contains the names of many tenants, it seems to be sufficient that the copy served on each contains the name of the one only on whom the declaration and notice are served. (Doe v. Roe, 1 Har. & Woll. R. 516. Roe v. Roe, 7 Term R. 471.) And it seems, that the notice at the foot of a declaration in ejectment may be directed to each of several defendants separately, and need not be directed to all. (Doe v. Roe, 4 Jurist, 1134.) And, in one case, it was held, that where several tenants have been duly served, judgment may be entered against the casual ejector, although the notice was not addressed to any or either of such tenants. (Doe v. Roe, 5 Moore's R. 73.) But this can hardly be regarded as safe practice, although it may answer, where, as in the case in Moore, the tenant was duly served with a copy of the declaration and notice before the first day of the term, and acknowledged the service.
It has been held, that the notice at the foot of the declaration in ejectment must contain the christian name of the tenant, and that it is not sufficient to swear to the identity of the person served. But the same case held, that the second name of the tenant in possession, both in the declaration and notice, may be in initials. (Doe v. Roe, 1 Chitty's R. 573.) But it is to be collected from the tenor of the later cases, that the insertion of a wrong
christian name, or the omission of the christian name altogether, will not invalidate the notice. (Doe v. Roe, 2 Dowl. P. C. 517. Doe v. Roe, Ib. 567. Doe v. Roe, 3 ib. 563. Doe v. Roe, 6 ib. 62. Doe
v v. Roe, Ib. 629. Doe v. Roe, 9 ib. 340. Doe v. Roe, 5 ib. 716. Anonymous, 1 Chitty's R. 573, note a.) The reason of the rule seems to be, that the defendant would otherwise have the advantage of a plea in abatement, which never is allowed in the action of ejectment. (Doe v. Roe, 6 Maule & Selwyn's R. 203.) But,
. as in the other instance suggested, the safe practitioner will be careful to have the notice properly addressed to the tenant in possession, with his full christian and surname, although it is seldom necessary that a middle christian name be inserted; and it has been held, that a notice directed “ to the personal representatives of A. R." (the deceased tenant) is not sufficient. (Doe v. Roe, 1 B. Moore's R. 113. Doe v. Hurst, 1 Chitty's R. 162.) And, again, that a notice addressed to A. R., and served upon C. D., will be insufficient. (Doe v. Roe, 5 Dowl. P. C. 254.)
In the notices attached to declarations in ejectment, each tenant being rightly named in his own notice is sufficient, as before stated; and, therefore, an alteration in the name of a tenant in the notice served in the others is immaterial, if it appear by affidavit that the person served is the person intended. (Doe v. Roe, 6 Dowl. P. C. 62.) And where there were several tenants in possession who were all served, and after the service it was discovered that the name of one had been mis-spelt, the name was altered with the tenant's consent. The court allowed the previous service to stand, and held it good as against the others. (Doe v. Roe, 1 Arnold's R. 386. Same Case, 2 Jur. 945.) So the court will grant the rule for judgment against the casual ejector, although in the notice served on two of the tenants the christian name of a third tenant is omitted. (Doe v. Roe, 6 Dow. P. C. 629.) So, where there are thirteen tenants in possession, and they have all been personally served with the declaration and notice, it is no objection that the christian names of two of them have been omitted in all the notices. (Doe v. Roe, 6 Dowl. P. C. 629.) And if the name of the tenant is improperly spelled in the notice served on another, it is immate
rial for the service on the latter. (Doe v. Roe, 5 Dowl. P. C. 716.) Where the christian name in the notice to a declaration in ejectment is incorrect, the court hold it to be sufficient, if there is an affidavit that the person served is the person intended, even though the tenant served does not give his consent that the name may be corrected. (Doe v. Roe, 3 Dowl. P. C. 14, 563. Doe v. Roe, 1 Har. & W. R. 217.) And if the service is regular, it has been held that the substitution of “Jacob ” for “Sarah" in the notice is immaterial. (Doe v. Roe, 2 Dowl. P. C. 567. Doe v. Roe, 1 Willmore, Wollaston & Hodge's R. 584.) And in one case a rule to show cause why a service should not be deemed good, was granted by the court, though the christian name of the tenant could not be discovered. (Doe v. Roe, W., W. & Davison's R. 607.)
Where the notice at the foot of the declaration in ejectment was directed to "R. Newton," and served on “R. A. Newton," and it appeared by affidavit that the latter was the person intended, the court held the notice and service sufficient. (Doe v. Roe, 9 Dowl. P. C. 340.)
The notice at the foot of a declaration in ejectment has been held in Kentucky to be in the nature of process, and cannot, therefore, be aided by any statement of the person serving the declaration, or by the defendants appearing and excepting, unless the defendants enter into the common rule. (Craig v. Clark, 3 Marsh. R. 252.) And in the state of New York it has been held that, inasmuch as the action of ejectment can only be commenced by the service of a declaration, with the required notice in writing subjoined, such declaration is in the nature of process; that is to say, it is in the nature of process, because it is made the substitute for process in bringing the defendant into court. In no other sense can a declaration be regarded as even in the nature of process; as its name imports, process is something issuing out of, and returnable to, the court; it is generally, if not always, synonymous with writs ; it is to be issued in the name of the people; it is tested; it bears the seal of the court; it is made returnable to the court at a specified time. The declaration and notice in ejectment contain some of the ingredients of process, and perform the office of getting the defendant before the court; but they are not process within the meaning of the statutes of New York, requiring process to be made returnable within the two weeks of the term of court. (Borst v. Griffin, 5 Wend. R. 84. Knapp v. Pults, 3 How. Pr. R. 53.)