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 "or you 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.) CHAPTER XXII. OF THE SERVICE OF THE DECLARATION IN EJECTMENT WHEN AND HOW 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 * 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 The present practice in England and in those states where the former rules in ejectment have been superseded by others, will be given in the proper place hereafter.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 eject ment 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 the actual possession of the demised premises, the service is suf ficient though effected while the defendant was not living within. the jurisdiction of the court in which the action is brought. (Doe v. Woodroffe, 7 Dowl. P. C. 494.) This statement, however, should probably be qualified with the condition that the declaration and notice in ejectment must in all cases be served within the nation or the limits of the state, and that the service cannot be made upon the party while out of the state, except the same is made under some statutory provision for a substituted service. Indeed, it has been held in the state of New York, that where the action is brought in a court of local and limited jurisdiction, the declaration must be served on the defendant while within the local jurisdiction. of such court. The court saying: "A declaration in a suit commenced by declaration is analogous to process, and process in a suit commenced in the common pleas of one county cannot be served in another. It would not be the regular and orderly conduct of a suit to file a bill against an officer of a court in one county, and serve him with a copy of such bill in another, and upon the same principle the service of the copy of the declaration in this case was irregular." (Ex parte Green v. Oneida Common Pleas, 10 Wend. R. 592, 593. And vide Dunn v. Dunn, 4 Paige's R. 425.) And yet, a defendant upon whom a declaration is served beyond the territorial limits of the jurisdiction of the court in which the suit is commenced, may waive the irregularity; for example, by appearing in the action, or by obtaining an order against the plaintiff to file security for costs. (Ex parte Squires v. Broome Common Pleas, 10 Wend. R. 600.) Where the original tenant has under-let the demised premises, after the term has expired, an ejectment may be maintained against him for so much of the premises as his under-tenants have not given up; and although he is not in the actual possession, in such case, the declaration and notice can be served on him, and he must answer to the suit. (Roe v. Wriggs, 5 Bos. & Pull. R. 330.) And if the service of the declaration and notice is made on the tenant in possession, and he neglects to notify his landlord, and judgment is taken against him by default, the same will be held regular, notwithstanding the tenant's neglect to give his landlord the notice. (Breeding v. Taylor, 6 B. Monroe's R. 62.) It has been held that service of the declaration and notice in ejectment on the servant of the tenant in possession of the demised premises, with the acknowledgment of the attorney of the tenant that such declaration and notice had been served, is sufficient for judgment nisi against the casual ejector. (Doe v. Snee, 2 Dowl. & Ryl. R. 5. Vide Marvin v. Dennison, 20 Vt. R. 662.) Ordinarily, where the action of ejectment is brought by a landlord against his tenant, and the tenant has under-let the premises, the service of the declaration and notice must be made on the undertenant, or under-tenants, if more than one, and a service on the original tenant will not be sufficient. For example, in ejectment for premises which had been demised on lease to one person who had under-let to others, it was held to be necessary to serve all the under-tenants with a copy of the declaration and notice. And where the tenant of a house locked it up and quitted it, and the landlord, three months afterward, affixed a copy of a declaration in ejectment with the usual notice to the door, the court held that the service was not sufficient, but that the landlord should have treated it as a vacant possession. (Doe v. Cock, 4 Barn. & Cres. R. 259.) Where a defendant, on being served with a declaration in ejectment assented to the character of tenant in possession, and afterward appeared and pleaded, it was held to be quite sufficient evidence for a jury to find that he was the tenant in possession, although it also appeared that he was in the situation only of a servant, and managed the leasings for the real owner on the premises. Abbott, C. J., observed: "As to the point suggested, that a servant is not liable to an ejectment, it is going too far to say, that under no circumstances that can be. There may be cases in which the court would hold that ejectment would lie against a servant;" and Bailey, J., said: "Where a servant is served with a notice in ejectment as tenant in possession, it is competent for him to explain his situation, and so to set the other party right; or, as he seems to have done in this case, to mislead him. If he adopts the latter course, it is very possible that a jury may think that he ought to be considered as the tenant in possession." (Doe v. Stanton, 1 Barn. & Ald. R. 371. And vide Doe v. Stradling, 2 Starkie's R. 187.) Where several persons are jointly in possession of the premises in question, it has been said that the service of the declaration and notice ought, in strictness, to be upon each party separately. (Buller's N. P. 98.) But the general rule is, that service upon one of two joint-tenants in possession is sufficient; and it has been held in one of the circuit courts of the United States, that if all the defendants live in the same house upon the premises in question, it is sufficient to deliver one copy of the declaration and notice. (Campbell v. Harper, 3 Wash. C. C. R. 356. Vide Roe v. Doe, 10 Moore's R. 493. Doe v. Roe, 2 Dowl. P. C. 418. Doe v. Roe, 6 ib. 291.) But where the parties in possession are not joint-tenants, then the general rule requires that the declaration and notice in ejectment should be served on the tenants severally; and in such a case, the common rule will be granted against the parties actually served, and a rule nisi against the other parties. (Right v. Wrong, 2 Chitty's R. 175. Doe v. Roe, Ib. 174. Anonymous, Ib. 176. Doe v. Roe, 1 ib. 141. Doe v. Roe, 3 B. Moore's R. 578. Doe v. Roe, 1 Bos. & Pull. R. 369. Doe v. Roe, 4 Dowl. P. C. 586, 591.) A plaintiff in an action of ejectment brought against eleven persons in possession of distinct portions of the premises claimed, holding by separate titles, though all derived from the same source, but without any connection or community of interest between them, will be compelled, on the application of the defendants, to enter into a separate consent rule with each defendant. (Jackson v. Scoville, 5 Wend. R. 96.) Several defendants, however, may be joined in one suit in ejectment, where the plaintiff's title in relation to all is the same, although their possessions may be several and not joint; but in such case a copy of the declaration and notice must be served on each defendant. (Jackson v. Andrews, 7 Wend. R. 152. Jackson v. Wood, 5 Johns. R. 278. Camden v. Haskill, 3 Rand. R. 462. Stewart's Heirs v. Coalter, 4 ib. 74. White v. Pickering, 12 Serg. & Rawle's R. 435.) This rule has been applied where several persons were occupying different rooms in the same house belonging to the plaintiff. (Marshall v. Wood, 5 Vt. R. 250.) Service of the declaration and notice in ejectment on one of several partners has been held sufficient against all of the copartners; and so has service of the same papers on one of the two tenants who said the other was only his servant. (Doe v. Roe, 9 Dowl. P. C. 1039. Doe v. Roe, W., W. & D. R. 49. Doe v. Hall, Ib. 392. Doe v. Roe, Ib. 75.) But it has been held that service upon A. B., addressed to C. D., although both were tenants, was insufficient. (Doe v. Roe, 5 Dowl. P. C. 255.) And in one case of service upon one of two joint-tenants, who were also partners in trade, a rule nisi only was granted. where the notice was 2 Chitty's R. 17.) (Doe v. Roe, |