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The notice subjoined to a declaration in ejectment must require the tenant to appear, and apply to the court to be admitted defendant instead of the casual ejector, within a certain time after the declaration is delivered ; and in England, the time when the notice should require the tenant to appear and apply to be made defendant, was formerly regulated by the locality of the premises. But in America the practice usually requires that the notice should specify some day in the next general term of the court, to be held in the county in which the declaration is to be filed. (Knapp v. Pults, 3 How. Pr. R. 53.) And in Kentucky, a notice which required the defendant to appear on the first day of the next term of the circuit court,” without naming the court, was held to be bad. (Beall v. Siverts, 1 Marsh. R. 154.)

The English statute, 1 William IV, chapter 70, section 36, provides that the notice in the cases specified in the statute, must invariably require the tenant to appear within ten days after the delivery of the declaration. In all other cases than those specified in the statute, when the premises are situated in London or Middlesex, the notice should be for the tenant to appear "on the first day” of the term next after the delivery of the declaration, specifying the term by name; but it is said by Mr. Adams, that it will be sufficient if the notice be to appear generally of the term, in which case the tenant will have the whole term to appear in. This is probably a correct view of the practice, although Mr. Adains cites no authority to sustain the statement which he makes; that is to say, no authority is cited in connection with the statement. And yet the decisions are abundant to sustain the principle of the position taken. For example, the court granted a rule nisi for judgment, when the notice was of the wrong term, but the tenant in possession was informed of the mistake after the service of the declaration and notice. (Anonymous, 2 Chitty's R. 171.) So when a declaration was entitled of Michaelmas term, 54 George III, instead of 55 George III; but the notice was dated on the 11th of January, 1815, requiring the tenant to appear “in next Hilary term ;” the court held it to be sufficient. (Goodtitle v. Roe, 2 Chitty's R. 172.) So, also, when the notice was in “ Trinity term next," instead of “ Hilary term next,” the court granted the rule for judgment. (Doe v. Graves, 2 Chitty's R. 172.) A declaration

A not entitled of any term, delivered before the essoign day of Hilary term, with a notice, dated on the first day of January, to

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appear within the first four days of the next term, was held sufficient by the court. (Goodtitle v. Badtitle, Hilary Term, 1818, C. B., M. S.) And a declaration delivered in Hilary vacation, entitled of Easter term, with a notice to appear on the first day of the next term, was held good for an appearance as of Easter term. (Anonymous, K. B., E. T., 1817, M. S.) But where, in the notice, the tenant was required to appear in eight days of St. Hilary term, instead of as of Hilary term generally, the court would not allow final judgment to be signed, but left the party to bring a fresh action, holding the service to be irregular and void. (Lackland v. Badland, 8 Moore's R. 79.)

If a declaration is duly served before the essoign day, the omission in the notice of the term in which the tenant is to appear, has been held to be immaterial. (Doe v. Roe, 1 Tyr. R.

, 280.) And a notice at the foot of the declaration, advising the tenant to appear, and defend in due time, has also been held to be sufficient. (Doe v. Roe, 2 Nev. & Man. R. 476. Doe v. Roe, 2 Dowl. P. C. 420.) But a notice at the foot of a declaration in ejectment, omitting to state that the consequences of the action not being defended will be the turning of the tenant out of possession, has been held to be insufficient, but that the same might be amended on terms. (Doe v. Roe, 3 Dowl. P. C. 336.)

When the notice at the foot of the declaration in ejectment required the tenant to appear in the king's bench, and the court having, since the service thereof, become the queen's bench, by the demise of the crown, a judgment was granted against the casual ejector, the same as though no change had occurred in the name of the court. (Doe v. Roe, W. W. & D. R. 606. Same Case, 6 Dowl. P. C. 36.) And the court refused in one case to set aside a declaration in ejectment in which the notice was dated of a day subsequent to the notice of the declaration. (Doe v. Roe, 1 Adolph. & Ell. R. 11.)

On a motion for judgment against the casual ejector, it was stated that the notice subjoined to the declaration served was dated 13th May, and that it called upon the tenant in possession to appear next Easter term, but that the mistake was explained to the tenant at the time the same was served; the court granted a rule nisi for judgment against the casual ejector, and as no cause was shown to the contrary, the same was made absolute. (Doe y. Roe, 5 Dowl. P. C. 667. Same Case, 1 Jur. 454.) And it has been held to be no objection to the notice at the foot of the declaration in ejectment that it omits the word “Hilary.” (Doe v. Roe, 8 Dowl. P. C. 308.)

When the notice subjoined to a declaration in ejectment required the tenant to appear in Trinity term, and the declaration was of the same term, the court granted a judgment against the casual ejector for the premises claimed. (Doe v. Roe, 1 Arn. R. 240.)

And the rule nisi for judgment against the casual ejector was granted in Trinity term, when the declaration was served just previous to the term, and the notice required the tenant to appear in the next Easter term. (Doe v. Roe, 2 Har. & W. R. 138. Same Case, 5 Dowl. P. C. 149.) So, also, it has been decided that in a county ejectment the notice at the foot of the declaration may be that the tenant appear in the next issuable term, and that judgment may be moved for in that term. (Doe v. Roe, 4 Taunt. R. 738.)

The regular and correct practice requires that the notice at the foot of the declaration in ejectment should be subscribed with the name of the casual ejector; and sometimes there is a statute requiring the notice to be subscribed with the name and place of residence of the plaintiff. But by the liberal rules governing the courts, where no statute exists, the notice may be subscribed in the name of the nominal plaintiff, or the lessor of the plaintiff; or even if it be signed by a wrong name, the court will permit judg. ment against the casual ejector to be entered up. (Peaceable v. Troublesome, Barn. R. 172. Hazlewood v. Thatcher, 3 Term R. 351. Goodtitle v. Notitle, 5 Barn. & Ald. R. 849.)

Where a declaration in ejectment is served with two notices annexed, one requiring the appearance of the defendant, and the other requiring the defendant to appear, and enter into recognizance pursuant to 1 George IV, chapter 87, the court granted the common rule, holding, that on the appearance of the defendant, the latter notice may be treated as surplusage. (Doe v. Roe, 5 Dowl. P. C. 508.) And the notice at the foot of the declaration, served in pursuance of the above statute, must be signed by the landlord himself, or his agent, and not by Richard Roe, in order to give him the benefit of the statute. (Anonymous, 1 Dowl. & Ryl. R. 435, note.) Although on moving for the usual landlord's rule under that statute, if the notice given to the tenant has been signed by an agent of the landlord, no affidavit is required, proving that the person signing it is the landlord's agent. (Doe v. Roe, 1 W., W. & H. R. 346.)

An amendment of the notice at the foot of the declaration in ejectment will be allowed in respect to any matter which the justice of the case may require. For example, in a country cause, where the notice was to appear in Michaelmas term, where the ordinary practice required that the notice should be to appear in an issuable term, and it appeared, that if the lessor of the plaintiff were not permitted to amend the notice, he would be barred by the statute of limitations, an amendment was allowed by the court. (Doe v. Roe, 7 Term R. 469.) And an amendment of the notice was allowed, on application to the court, where the words “ will be turned out of possession of the same” had been omitted in the notice through mistake. (Doe v. Roe, 3 Dowl. P. C. 336.) So also, in the state of New Jersey, the notice at the end of the declaration in ejectment was amended by order of the court, after the same had been served, by striking out one day and inserting another. (Den v. Laring, 4 Halstead's R. 254.)

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CHAPTER XXII.

OF THE SERVICE OF THE DECLARATION IN EJECTMENT - WHEN AND HOW

THE DECLARATION MUST BE SERVED - THE NOTICE OF THE SERVICE OF THE DECLARATION TO THE LANDLORD.

The common-law action of ejectment is commenced by the service of a declaration and notice, and the delivery of the same to the tenant, therefore is governed by rules which resemble the service of a writ more than the delivery of a declaration.* The only notice which the tenant in possession of the premises in dispute

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* By the present practice in England, the action of ejectment is commenced by the service of a writ, directed to the person in possession of the land claimed, by name; and in many of the states the action is commenced by the service of a summons, or other process than a declaration. The present practice in England and in those states where the former rules in ejectment have been superseded by others, will be given in the proper place hereafter. But the former practice in ejectment is understood still to prevail in several of the states, and most of the principles of the late practice are applicable in many respects to the current practice.

gets of the plaintiff's proceedings, is from the declaration and notice appended thereto. The courts, therefore, are very careful to see that the declaration and notice have been properly served on the tenant, and the nature and contents thereof intelligibly explained to him, before they will authorize a judgment to be entered against the casual ejector. In view of this fact, it is of considerable importance that the subject of the time when and the manner in which, the declaration and notice in ejectment are to be served, be well understood; and perhaps the matter will be best comprehended by giving a short digest of the cases upon the subject.

The service of the declaration must be effected before the first day of the term in which the notice at its foot directs the tenant to appear. (Doe v. Roe, 6 Dowl. P. C. 479.) And the declaration must either be served personally on the tenant in possession of the premises at the time of the service, or satisfactory proof adduced by affidavit on the motion for judgment against the casual ejector, either that it duly reached his hands within the proper time, or that the service could not be duly effected. Sometimes the manner of the service of the declaration and notice in ejectment is pointed out by statute ; and where this is so the terms of the statute must be substantially complied with.

Except in some cases provided by statute, the defendant in ejectment must be the tenant in possession of the premises in dispute, and ejectment will not lie against a person who is, to all intents and purposes, out of possession. It must, therefore, appear that the person or persons on whom the declaration and notice were served was or were the tenant or tenants in possession at the time the service was made. (Wharton v. Clay, 4 Bibb's R. 167.) And, so far as is practicable, the declaration and notice in ejectment should be personally served on the tenant or tenants in possession; although circumstances may and often do exist, which render a personal service impossible or impracticable, when a different service is substituted and accepted.

Where the service of the declaration and notice is personal, it is immaterial whether it be upon the demised premises or elsewhere, if within the jurisdiction of the court. (Savage v. Dent, Strange's R. 1064. Taylor v. Jefts, 11 Mod. R. 302. Doe v. Woods, 1 Marsh. R. 152.) And it has even been held, that where the declaration and notice in ejectment are personally served upon the tenant in

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