the wife of the tenant in possession, that she has received a declaration in ejectment, will not bind her husband. Eyre, Ch. J., said: "If a declaration be served on the wife of the tenant in possession, and she neglects to deliver it to her husband, he must answer for her default. But it would be going further than we have ever yet gone to admit the mere acknowledgment of the wife to bind the husband." The motion for judgment against the casual ejector was denied. (Goodtitle v. Badtitle, 1 Bos. & Pull. R. 384.) The declaration and notice in ejectment must be served on some day before the first day of the term at which the tenant in possession is required to appear, and when thus served the plaintiff is entitled to judgment against the casual ejector, in the same manner as upon declaration served before the essoin or first general return day. (Doe v. Roe, 2 Barn. & Adolph. R. 789. Doe v. Roe, 7 Bing. R. 784. Doe v. Roe, 4 Carr. & Pa. R. 604.) This is now the rule, though formerly the service was required to be made before the essoin day of the term; and where the service was before that day, and the explanation of it to the tenant in possession did not occur till after, the plaintiff was not entitled to judgment. (Doe v. Roe, 1 Dowl. & Ryl. R. 563. Doe v. Roe, 2 Chitty's R. 180. Doe v. Roe, 4 Moore's R. 20. Roe v. Doe, 14 East's R. 441. Doe v. Roe, 1 Har. & W. R. 46.) Now, on motion for judg ment against the casual ejector, if service of the declaration is to be proved by the tenant's acknowledgment made in term, it must appear by such acknowledgment that the service was before term. (Doe v. Roe, 2 Adolph. & Ell. R. 588. Same Case, 4 Nev. & Man. R. 553.) Where the declaration was tendered on the day before the first day of term, but the defendant's servant said he had orders not to receive any such thing, whereupon it was not then served, but was left at the house upon the day following, the court refused the rule for judgment against the casual ejector, saying: "We sometimes make that service, under particular circumstances, good, which otherwise would have been imperfect; but here there was no service on the proper day, and we cannot antedate the service." (Woodf. Land. & Ten. 466.) Although the court will sometimes make that a good service, under particular circumstances, which otherwise would be imperfect; yet, where the service has been after the proper day, they will not allow it to be antedated. (Anonymous, Woodf. Land. & Ten. 386.) But on the trial it is no ground of nonsuit, on a defense, that the declaration in ejectment was irregularly served. (Doe v. Brindley, 1 Nev. & Man. R. 1. Same Case, 4 Barn. & Adolph. R. 84.) Where the service of the declaration and notice in ejectment is good for part, and bad for part, the lessor may recover those premises for which the service is good; but if he proceed for all, and obtain possession by 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. (Woodf. Land. & Ten. 463.) And where a rule nisi for judgment against the casual ejector is served on persons who appear and show they are not in possession, and have no claim on the premises, they are entitled to the costs of being brought before the court. (Doe v. Roe, 1 Man. & Gr. R. 490.) Where the premises are vacant, the claimant must resort to the ancient practice which is explained in a previous chapter. (Vide ante, ch. 19.) The notice at the foot of the declaration in ejectment must be read and explained to the tenant in possession, or other person with whom the papers are left; and it is not sufficient to read the notice merely, unless the tenant subsequently acknowledges that he understood the meaning and intention of the service. But with such acknowledgment the service is good without any proof that the papers were read and explained. And if the tenant in possession reads over the notice himself, and says he understands the nature and object of a declaration in ejectment, it is not necessary for the person serving it to read it over or explain it. But ordinarily, in effecting the service of the declaration in ejectment, the notice must be read over and explained to the tenant in possession, though from his rank in life it is probable that he will understand the object of the service. (Doe v. Roe, 2 Chitty's R. 186. Anonymous, Ib. 185. Doe v. Roe, 3 Hodges' R. 210. Doe v. Roe, Ib. 14. Doe v. Roe, 5 Jur. 486, B. C. Doe v. Roe, 1 Dowl. P. C. 428. Doe v. Roe, Ib. 518. Doe v. Roe, 1 W., W. & H. R. 584.) Where a printed declaration and notice in ejectment were served upon an illiterate tenant, who was told merely that they were a declaration in ejectment, without any further explanation, but it appeared from circumstances that he must have known the nature of the papers, the court considered this equivalent to a technical service. (Jackson v. Stiles, 1 Cow. R. 222.) And, in one case, it was held, that it will suffice to read over the papers to the tenant in possession without explaining them, or to explain them without reading them over. (Doe v. Roe, 1 Dowl. P. C. 428.) But the court must be satisfied that the tenant understood the nature and object of the papers, or might have so understood the same when the service was made, unless it appear that the tenant fails to get the proper explanation and understanding from some fault of his own, as his refusal to hear the explanation, and the like. (Anonymous, 2 Chitty's R. 185. Doe v. Roe, 6 Dowl. P. C. 51. Same Case, 1 W., W. & H. R. 206.) If a tenant in possession is a foreigner, not understanding the English language, the object of the declaration and notice in ejectment may be explained through the medium of an interpreter; and the interpreter employed to make the explanation need not be sworn, and his explanation is sufficient to entitle the lessor of the plaintiff to sign judgment, though not made under oath. (Doe v. Roe, 9 Dowl. P. C. 1023. Doe v. Roe, 3 ib. 335.) Under the English statute, every tenant upon whom any declaration in ejectment is delivered, is required forthwith to give notice thereof to his landlord, under penalty of forfeiting the value of three years' improved or rack-rent of the premises demised or holden, to the person of whom he holds, to be recovered by action of debt. (11 Geo. II. ch. 19, § 12.) Similar statutes exist in several of the American States, which have been noticed in previous chapters. (Vide chapters 15, 16, 17, 18.) The improved or rack-rent referred to in the English statute is not the rent reserved, but such a rent as the landlord and tenant might fairly agree upon at the time of delivering the declaration in ejectment, in case the premises were then to be let. Sometimes the tenant, by fraudulently concealing the service of the declaration and notice in ejectment from his landlord, and allowing judgment to be taken for more land than the declaration covered, may subject himself to the action for this three years' improved rent for the demised premises, and for example certain services in addition. (Crocker v. Fothergill, 2 Barn. & Ald. R. 652.) In some instances a regular judgment in ejectment will be set aside on terms, where the tenant has neglected to give the landlord notice of the service of the declaration and notice; although occasionally the courts have allowed such judgments to stand, where they were entered up without any collusion with the tenant. Doe v. Roe, 2 Scott's R. 181. (Doe v. Roe, 1 Hodges' R. 223. It is held, however, that under the English statute, a tenant to a mortgagor, who does not give his notice of an ejectment brought by the mortgagee to enforce an attornment, is not liable for the penalties given by the act. (Buckley v. Buckley, 1 Term R. 647.) This whole subject of serving the declaration and notice in ejectment is often regulated by statute in the American states, and where this is so, the provisions of the statute will be given in subsequent chapters. CHAPTER XXIII. OF THE AFFIDAVIT OF SERVICE OF THE DECLARATION AND NOTICE IN EJECTMENT THE JUDGMENT AGAINST THE CASUAL EJECTOR, BY DEFAULT - OPENING THE DEFAULT, AND ALLOWING THE TENANT TO DEFEND. AFTER the service of the declaration and notice in ejectment has been effected, the next step to be taken, in order to obtain judgment against the casual ejector, is to make an affidavit of such service, which must be annexed to the declaration, and is the ground upon which the rule for judgment is to be moved for. However, where the service is in the regular way upon the tenant in possession personally, by an officer of the court, the return of the officer will be sufficient, without any affidavit. The return of the officer is sometimes made the proper evidence of such service, by statute. (Campbell's Lessee v. Harper, 3 Wash. C. C. R. 456. Gratz v. Benner, 13 Serg. & Rawle's R. 110.) Where the service of the declaration and notice in ejectment is on the tenant in possession in the ordinary and regular way, the proof of service is presented to the clerk of the court, and the rule for judgment against the casual ejector is entered as a matter of course. But when the service is not in the regular way, the motion for judgment must be made in open court, where all the special circumstances relating to the service must be made to appear by affidavit. And it is decided that when any special circumstances exist, the motive for the rule may be made, either before or after the service of the declaration; although if the lessor be aware of the obstacles he will have to encounter, it is recommended that the notice be made prior to the service, for a rule to show cause why a service of such a nature as shall be stated in the affidavit should not be sufficient. (Doe v. Roe, 5 Dowl. P. C. 271. Methold v. Noright, Blk. R. 290. Gullion v. Wagstaff, Ib. 317.) The affidavit of service of the declaration and notice should not be entitled in the real names of the defendants, but in the name of the casual ejector. (Anonymous, 2 Chittty's R. 181.) The lessor of the plaintiff should be properly stated in the title of the affidavit; although if the lessors of the plaintiff are described to be executors, the affidavit of service need not in stating the name of the cause, notice the character of the lessors stated in the declaration. (Doe v. Roe, 2 Dowl. P. C. 55. Same Case, 3 Tyr. R. 602.) If, however, the character of the lessors of the plaintiff is stated in the entitling of the affidavit of service of the declaration and notice, although by mistake, it seems to be bad, and the affidavit cannot be used, though it refers to a rule annexed, which has a correct title. (Doe v. Roe, 5 Jurist, 508, B. C.) An affidavit of the service of the declaration and notice entitled "Doe on the several demises of A B, C D, E F and G H," where some of the demises were joint and others several, has been held to be sufficient. (Doe v. Roe, 5 Dowl. P. C. 447. Same Case, Mur. & H. R. 3.) And where the declaration was on two several demises, and in the title of the affidavit of service the names of the lessors of the plaintiff were mentioned jointly, without specifying which of them were parties to each demise, the court held, that the title to the affidavit was sufficient. (Doe v. Roc, 1 Jur. 844.) And an affidavit entitled "Doe on the demise," instead of demises," is sufficient; although it seems that an affidavit of service of a declaration in ejectment, where the declaration is on several demises, is wrongly entitled "Doe, on the demise of C, v. Roe," without mentioning the names of the other lessors of the plaintiff. (Doe v. Roe, W., W. & D. R. 75. 166. Doe v. Roe, 4 Mees. & Wels. R. 68. P. C. 53. Same Case, 1 Horn & H. R. 191. 470.) And an affidavit of service of the declaration and notice Same Case, 1 Jur. Same Case, 7 Dowl. Same Case, 2 Jur. |